Latest news with #DatukRogerChin
Daily Express
a day ago
- Politics
- Daily Express
MA63: Fatigue, scepticism and cynicism
Published on: Sunday, August 17, 2025 Published on: Sun, Aug 17, 2025 By: Datuk Roger Chin Text Size: Mention 'MA63' today and you're just as likely to get an eye-roll as a serious conversation. For many, the Malaysia Agreement 1963 has become a tired refrain –overused in speeches, repackaged in press statements and quietly shelved once the spotlight fades. No surprise, then, that its mention now triggers fatigue, scepticism, even cynicism. The weariness is understandable. But it's also dangerous. Because while MA63 has been endlessly discussed, dissected and politicised, what remains elusive is the realisation of its spirit and substance in policy, governance and law. It's been talked to death, yes—but a never truly honoured. A Partnership That Was Meant to Be Equal — And Was Carefully Negotiated When Sabah, Sarawak and Singapore joined Malaya to form Malaysia in 1963, it was not through absorption or annexation, but through a negotiated arrangement premised on mutual respect, agreed terms and constitutional safeguards. The Malaysia Agreement was intended to reflect that foundational understanding—that these were equal partners, not appendages. Yet, what followed in the ensuing decades was a quiet dismantling of that original vision. Centralisation of power, reduction in state autonomy and opaque federal control over resources—not least petroleum and gas—contributed to a deepening sense of marginalisation. Decisions affecting the lives of East Malaysians were too often made in distant ministries, by those with little lived understanding of the land or its people. And through it all, Sabah and Sarawak were told to be patient. That development takes time. That grievances would be addressed in due course. We waited more than sixty years. More Than Just MA63 - The Foundations Beneath the Agreement When we say MA63, we mean not just the agreement itself—but the entire bundle of documents, negotiations and constitutional assurances that made Malaysia possible. To understand why MA63 matters, we must also acknowledge the documents that underpinned it—namely, the Cobbold Commission Report, the Inter-Governmental Committee (IGC) Report and the 20-Point Agreement (for Sabah) and 18-Point Agreement (for Sarawak). These were not side notes to history. They were detailed expressions of the concerns, conditions and constitutional safeguards demanded by the people of Borneo before Malaysia could even be considered. The Cobbold Commission gathered public feedback and made clear that union with Malaya would only be acceptable if safeguards were in place to protect local autonomy, culture, religion and resources. This laid the groundwork for the IGC Report, which negotiated the constitutional arrangements to operationalise those safeguards. In turn, Sabah's 20-Point Agreement and Sarawak's 18-Point Agreement set out key guarantees—such as control over immigration, religion, language and education—that were meant to preserve the unique identities and interests of the Bornean states. These were not informal side deals. They were integral to the creation of Malaysia and are referenced in the Malaysia Agreement itself. They form the legal and moral scaffolding that supports MA63. To ignore them—or treat them as historical trivia—is to misunderstand the very basis upon which Malaysia was built. When we speak of honouring MA63, we are also speaking of honouring those documents—the fears they addressed, the promises they made and the federal design they helped shape. A Moment of Unusual Leverage Today, the political configuration in Malaysia is such that the government in Putrajaya can no longer form majorities without the support of East Malaysian blocs. This new reality has, at long last, shifted Sabah and Sarawak from the periphery of national politics into a space of potential influence. But political leverage is not the same as structural change. And it is certainly not permanent. If this moment—rare as it is—is not translated into meaningful, institutional reform, then it will pass as so many others have - a missed opportunity buried beneath press releases and polite deferrals. And if that happens, we may not see another opportunity of this kind for a generation. Why MA63 Is a Malaysian Imperative, Not Just a Bornean One It must be emphasised that the case for honouring MA63 is not a parochial or regional campaign. It is not about special treatment for Sabah and Sarawak. Rather, it is about respecting the very terms upon which Malaysia was founded. It is about legal clarity, constitutional integrity and political maturity. If those terms are not upheld, then Malaysia's legitimacy as a voluntary federation is weakened. When founding partners are treated as secondary stakeholders—economically disadvantaged, underrepresented in decision-making and mischaracterised as dependents rather than contributors—national cohesion suffers. Conversely, if we get this right, the benefits extend beyond East Malaysia. Rebalancing the federation could bring about a more equitable distribution of resources, more locally responsive governance and a stronger, more coherent national identity—one rooted in mutual respect, rather than managed disparity. Before the Window Closes There are those—both in and outside of Borneo—who quietly hope that East Malaysians will lose steam. That we'll tire ourselves out. That the MA63 conversation will fizzle out under the weight of fatigue, distraction, or despair. And that is exactly what we must not allow. If we stop pushing, this issue won't be resolved—it will simply disappear. Not with resolution, but with silence. And once it slips from public consciousness, the damage will not be just political, but generational. Some say it's all talk anyway. That Sabahans and Sarawakians have no real will to act. That we complain, but tolerate vague assurances, shifting deadlines and recycled promises. We can't keep proving them right. There is no guarantee that this present alignment of political circumstances will last. Leaderships change, alliances shift and with them, priorities. If fatigue prevails—if we retreat from the conversation simply because others tire of hearing us—we will have surrendered one of the few moments in our post-Malaysian history when structural correction felt possible. Others say this is all a waste of time. That Sabahans are all bark, no bite—loud on social media, but silent at the ballot box. That we regurgitate the same grievances, but never follow through. It's not entirely untrue. But if that becomes the dominant narrative, if disillusionment curdles into apathy, then the danger is not just that MA63 is ignored—it's that it disappears entirely from public consciousness. That we stop caring. And once that happens, it's over. Which is why the people must demand more from their leaders. No more empty promises or recycled slogans. The next elections must be a referendum on action—not talk. Elect doers, not observers. Builders, not passengers. We must elect leaders who will push forward, not stall. Who will demand finality, not perpetuate ambiguity. Our leaders must not allow any more half-hearted assurances, nor tolerate postponed or missed deadlines. The people must not accept anything less. The demands surrounding MA63 are not excessive. They are reasonable, legitimate and long overdue. But they will not be realised through rhetoric alone. We must persist. Not with slogans, but with legal arguments. Not with outrage, but with strategy. Not with nostalgia, but with a clear, forward-looking vision of what a fair and functional federation looks like. And we must not lose hope, nor fall silent in the face of dismissal. As Dylan Thomas reminded us: Do not go gentle into that good night, Old age should burn and rave at close of day; Rage, rage against the dying of the light. Because the light — of truth, of justice, of what was promised — is still flickering. And we will not let it die. The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: [email protected]
Daily Express
10-08-2025
- Business
- Daily Express
SMM and truth about Sabah mining permits
Published on: Sunday, August 10, 2025 Published on: Sun, Aug 10, 2025 By: Datuk Roger Chin Text Size: IN recent months, Sabah Mineral Management Sdn Bhd (SMM) has found itself at the centre of political and public controversy. Commentators, news portals, and social media voices have questioned its role, legitimacy, and power — particularly in the context of mineral licensing. Accusations have ranged from misconduct to claims of political manipulation. But in the rush to assign blame, fundamental facts have been lost. Advertisement SMM is not a secretive gatekeeper. It does not issue mining licences, approve them, or profit from them. It is not a commercial miner. It is a government-owned coordination agency created to bring order, integrity, and structure to Sabah's mining sector — a sector long marred by unregulated claims, opportunism, and jurisdictional confusion. An Institutional Response to a Broken Past Before SMM was established, applications for mining and prospecting licences in Sabah were handled by a patchwork of departments, often with limited coordination and varying standards. Advertisement This created fertile ground for speculative land grabs, poor documentation, overlapping land claims, and disputes that harmed investor confidence and state interests alike. Recognising this, the Sabah Government formed SMM as a centralised, professionally managed, state-owned company to act as a one-stop agency — not to replace legal processes, but to ensure they are followed properly. SMM exists to serve the public interest by: Screening and processing licence applications Coordinating due diligence and inter-agency input Ensuring that only qualified, credible applicants proceed Protecting Sabah's land, environment, and sovereignty from misuse What SMM Actually Does SMM operates under the legal framework of the Mining Ordinance 1960, which governs all mineral-related activity in Sabah. Under Section 6 of that Ordinance, the Chief Minister of Sabah alone holds the legal authority to grant mining or prospecting licences. SMM has no such power. It is not a licensing authority. Instead, SMM plays a role before the licence stage. When a prospecting application is submitted — whether to the Chief Minister's Office, the Sabah Natural Resources Office (Pejabat Hasil Bumi Sabah), or directly to SMM — the application eventually comes through SMM for vetting. SMM's process includes: Verifying the applicant's financial standing, technical capacity, and local participation Coordinating with other state departments, including: The Department of Lands and Surveys (JTU) Pejabat Hasil Bumi The Sabah Forestry Department Preparing reports and materials for its Board of Directors, which includes senior officials and is chaired by the Chief Minister himself. One key strength of SMM's governance structure is the presence of a Board of Directors, which allows for greater flexibility and depth in decision-making. Unlike rigid ministerial structures, a BOD can include subject-matter experts from outside the civil service — such as geologists, legal professionals, industry practitioners, or community representatives — who bring specialised insight not always available within government departments. This broadens the State's capacity to assess applications and policies based on real-world knowledge, technical competence, and independent judgement. If the Board is satisfied, it may grant the applicant 'permission to apply'. This does not mean a licence is granted. It simply means the application is cleared to be formally submitted to JTU for statutory processing, and this is further subject to the applicant submitting all required documents and meeting all stipulated conditions within the given timeframe failing which the permission to apply for a prospecting license will be revoked/cancelled. JTU then consults other technical agencies. If there are no objections, the matter is passed to the Pejabat Hasil Bumi, which makes a recommendation to the Chief Minister. Only after all this can a licence be issued — and it must bear the Chief Minister's express approval. Understanding Prospecting and Mining Licences There is a fundamental distinction between a prospecting licence (PL) and a mining lease (ML) — a distinction often overlooked in public discussions. A prospecting licence merely grants the holder permission to explore a defined area for potential mineral resources. It does not confer any right to extract or commercially mine minerals. Prospecting is investigative in nature, involving geological surveys, soil sampling, and test drilling. Only if sufficient mineral deposits are confirmed, and all regulatory and environmental standards are met, can the holder apply for a mining lease. This distinction is critical because prospecting must be completed before any mining can legally begin. It is not an automatic pathway to mining. In fact, statistics from Sabah and other jurisdictions consistently show that fewer than 5% of PLs ever convert into MLs. Most prospecting efforts do not result in economically viable discoveries, environmental approvals, or government endorsement for mining. Moreover, when a mining lease is eventually issued, it is significantly smaller in area than the original prospecting licence. This is by design. The purpose of the PL is to allow a wide survey area to identify where mineralisation may exist. But once confirmed, a mining lease is granted only for the specific zone where extraction is feasible and justifiable — usually a fraction of the PL's original footprint. It is also worth noting that prospecting involves substantial costs and commercial risk, borne entirely by the applicant. This includes geological work, environmental assessments, technical studies, and compliance obligations — often running into millions of ringgit with no guarantee of success. From the State's perspective, this represents a low-risk approach to mineral sector development. The State incurs no financial cost or liability during the prospecting phase, but gains key advantages: most importantly, the data collected during prospecting belongs to the State. This is especially significant given that only about 30% of Sabah's land area has been initially explored or prospected in the past, mainly by the federal Department of Minerals and Geoscience (JMG), and even then the State does not own that data. The current licensing process is therefore a way for Sabah to reclaim ownership of its geological data, expand knowledge of its mineral potential, and begin to systematically explore the remaining 70% of land area for which little or no data currently exists. Finally, while the State bears no cost during prospecting, it becomes directly involved at the mining stage. If and when a mining lease is approved, the State participates through royalties, fees, land use payments, and in some cases, equity participation. This ensures that the commercial benefits of resource extraction flow back to the people of Sabah — but only once the necessary diligence, safeguards, and approvals have been completed. Understanding all this helps dispel the myth that large-scale mining automatically follows a PL. In practice, most prospecting does not result in mining, and any actual mining operation is subject to a much higher threshold of scrutiny, compliance, and public accountability. Misunderstanding 'Permission to Apply' A great deal of confusion has arisen from SMM's letters stating that a company has been given 'permission to apply' for a prospecting licence. These are often misrepresented as proof that a licence has been granted or promised. They are not. Such letters are procedural notifications, confirming that SMM's internal checks are complete and that the application may now enter the government's formal decision-making pipeline. The process is still ongoing. A licence may still be denied — for example, if land overlaps are discovered, environmental objections arise, or government policy changes. This misunderstanding has allowed some applicants to claim approvals that do not legally exist, fuelling public distrust and institutional confusion. SMM and Sabah's Rights Over Resources SMM also serves a deeper political and constitutional purpose. Under the Malaysia Agreement 1963 (MA63), Sabah has rights over land and natural resources. The creation of SMM is consistent with that entitlement. It reflects the State Government's intent to exercise greater control over how its resources are managed, and by whom. Rather than rely entirely on federal departments or fragmented state units, Sabah has taken steps to build its own administrative capacity. In doing so, it is asserting its autonomy in practical, not just rhetorical, terms. Why the Sabah State Assembly Is Not Involved Some have questioned why SMM or the licensing process does not involve the State Legislative Assembly. The answer is straightforward - the Mining Ordinance 1960 provides a clear executive procedure for handling applications. Licences are issued under the authority of the Chief Minister, via the administrative system. The Assembly plays no direct role because licensing is an executive function, not a legislative one. The system is designed to be governed by law and executed through proper administrative machinery, not political debate. The Value of SMM As Sabah positions itself for greater economic self-determination, institutions like SMM are vital. Without them, the state risks returning to a system where licences are pursued through backdoors, unclear processes, or political favour. SMM helps ensure that all applicants — whether local or foreign, connected or not — are subject to the same procedures, requirements, and scrutiny. This is not a barrier to investment. It is a defence of due process — and, by extension, of public confidence in the rule of law. Why SMM Matters Now More Than Ever Sabah Mineral Management Sdn Bhd is not a mining company. It does not grant licences. It is not a political instrument. It is a structured, law-governed agency tasked with protecting Sabah's interests in one of its most valuable sectors. In an age of suspicion and speculation, institutions like SMM matter more than ever. They do not exist to make decisions for Sabah, but to ensure that those decisions — when made — are legitimate, lawful, and in the public interest. If we want a future where Sabah's resources benefit its people, where applications are judged on merit, and where the law matters more than influence, then we need more agencies like SMM — not fewer. The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: [email protected]
Daily Express
13-07-2025
- Business
- Daily Express
Oil and gas: Bigger Sabah participation, Sabah can unlock its true potential in the industry.
Published on: Sunday, July 13, 2025 Published on: Sun, Jul 13, 2025 By: Datuk Roger Chin Text Size: THE Commercial Collaboration Agreement (CCA) between Sabah and Petronas marks a significant milestone. It empowers Sabah to exercise greater control over its oil and gas resources, paving the way for a period of renewed growth and development within the state. This positive outlook is further bolstered by the success of SMJ Energy, a Sabahan oil and gas company that has achieved remarkable financial standing, boasting a coveted triple-A bond rating and substantial assets and profitability as demonstrated by its RM50 million maiden dividend to the State Govt in 2023. However, a crucial question remains – how can Sabah leverage these developments to create a truly inclusive oil and gas ecosystem that empowers its local population? Moving Beyond Resource Extraction - A Collaborative Approach While the CCA and SMJ Energy's success are positive indicators, a strategic shift is necessary to translate these developments into tangible benefits for Sabahans. The focus should extend beyond mere resource extraction. Petronas, as the national oil company, has a unique opportunity to foster a collaborative environment. This can be achieved by actively supporting and nurturing the growth of Sabahan companies, enabling them to become key players across various segments of the oil and gas value chain. Moving away from the narrative of a skills gap, Petronas can play a pivotal role in bridging this gap by investing in targeted training programs and mentorship initiatives. Equipping Sabahans with the necessary expertise will unlock their potential to contribute meaningfully across the upstream, midstream, and downstream sectors of the industry. Transparency - Building a Ladder of Opportunity Transparency is paramount in ensuring equitable participation. Demystifying the entire oil and gas value chain – from upstream exploration and production to downstream activities like logistics, maintenance, and even catering services – is crucial. This information, readily available and presented in a clear and concise format, will empower aspiring entrepreneurs and business owners to identify suitable entry points for participation. Imagine a comprehensive breakdown of the different stages within the industry, along with clear outlines of the qualifications and resources needed for participation at each level. This will empower Sabahans, from established businesses to individuals with entrepreneurial ambitions, to identify their ideal entry points. Think of it as a carefully constructed ladder. A local catering company, for example, can begin by providing food services to offshore platforms. As their expertise and capacity grow, they can climb the ladder, potentially securing larger contracts or even expanding into other segments like equipment maintenance or specialized transport. This fosters a dynamic environment where local businesses can continuously improve and evolve alongside the industry. Additional Crucial Measures for Empowering Local Participation Infrastructure Development: Investing in Sabah's transportation networks, communication systems, and power grids will create a more attractive environment for businesses and incentivize further participation. Improved infrastructure will not only reduce operational costs but also enhance productivity and efficiency. Education and Training Alignment: Aligning Sabah's education and training curriculum with the specific needs of the oil and gas industry will ensure a readily available pool of qualified local talent. This includes incorporating relevant technical skills training alongside soft skills development programs to nurture well-rounded professionals. Local Content Requirements: Establishing clear and measurable local content requirements will incentivize contractors and operators to utilize Sabah-based services and workforce. This can be implemented through a tiered system that offers preference to companies demonstrating a commitment to local hiring and procurement. Financial Support Mechanisms: Providing access to financing for Sabahan businesses, particularly SMEs, is crucial for contract competition and joint venture participation. Loan guarantees, tax breaks, and subsidies can level the playing field. Grant programs specifically targeted towards innovation and technological development in the oil and gas sector can further empower local companies. Encouraging Innovation and Entrepreneurship: Fostering a culture of innovation and entrepreneurship will be critical to drive local participation beyond traditional service provision. Supporting the development of homegrown oil and gas technology and service companies will ensure Sabah has a stake in the entire value chain. This can involve establishing business incubators, providing mentorship programs, and organizing innovation challenges focused on addressing industry-specific problems. A Shared Journey Towards Prosperity By fostering an inclusive and transparent environment, Sabah can unlock its true potential in the oil and gas sector. Empowering Sabahans to participate meaningfully will not only contribute to their own economic well-being but also fuel the state's growth and development. The future is bright, and by equipping Sabahans with the right tools and knowledge, we can ensure they are well-positioned to navigate this exciting new chapter and become active participants in the state's oil and gas renaissance. The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: [email protected]
Daily Express
06-07-2025
- Business
- Daily Express
Use neighbours as tourism benchmark
Published on: Sunday, July 06, 2025 Published on: Sun, Jul 06, 2025 By: Datuk Roger Chin Text Size: Sabah's tourism figures are often paraded as a mark of success. Year after year, we hear about millions of tourist arrivals and billions in tourism receipts. But beneath this feel-good narrative is a far more uncomfortable reality - Sabah's tourism industry is propped up by domestic visitors, while international tourism — the true driver of foreign exchange and high-value growth — is stagnating. Advertisement Domestic Tourism Dominates the Headlines In 2023, Sabah recorded around 2.6 million tourist arrivals. But nearly 1.75 million of these were domestic travellers — Malaysians visiting from other parts of the country. That leaves just 858,000 international tourists, or about one-third of total visitors. This is not a new trend. Even before Covid-19, Sabah's international tourism numbers hovered around 1.5 to 1.6 million a year, showing no real growth. Meanwhile, the majority of the celebrated 'tourism boom' has always come from domestic visitors — travellers who spend less, stay for shorter periods, and contribute little in terms of foreign exchange. Compare Sabah's numbers to its regional competitors and the gap is stark. (see table) While Bali, Phuket, and Da Nang have surged back post-pandemic, Sabah's recovery has been modest at best. The international market that matters most is where Sabah lags the most. Air Connectivity - Sabah's Weak Link Part of the reason Sabah struggles to attract international tourists lies in its poor connectivity. Kota Kinabalu International Airport offers just 79 weekly international flights to 13 mostly short-haul destinations such as Singapore, Brunei, Taipei, Narita, and Incheon. Routes come and go, with airlines cancelling services when demand fails to materialise. In contrast, Bali and Phuket enjoy direct connections to Europe, the Middle East, Australia, and all major Asian hubs — making them far more accessible and attractive to international travellers. The Visitor Experience - Disappointing First Impressions Even when international tourists do arrive, what they find often leaves much to be desired. Roads to key attractions like Tanjung Aru Beach are potholed and poorly lit. Large sections of Kota Kinabalu city — including Sinsuran and Segama — are plagued by crumbling buildings, broken pavements, garbage, and general neglect. There is no vibrant city centre or waterfront district, no cohesive shopping or dining experience, and no signature cultural or entertainment attractions to extend stays. Unlike Bali's Seminyak, Phuket's Old Town, or Da Nang's riverfront promenade, Sabah offers little beyond its natural beauty — and nature alone is no longer enough. Economic Impact - Limited Gains from Tourism Sabah's tourism industry generated around RM 2.23 billion in receipts in the first quarter of 2024. This sounds impressive until we remember that the bulk of this comes from domestic visitors. By comparison, Bali's tourism sector accounts for about 70% of its regional GDP, driven by high-spending international tourists who stay longer and spend more. Sabah, by failing to grow its international market, misses out on this kind of economic uplift and job creation. Sabah's Challenge - Stop Believing Our Own Headlines Sabah's natural assets — its islands, mountains, and forests — are exceptional. But we are being outclassed because we have failed to match them with modern infrastructure, strong connectivity, vibrant cities, and compelling visitor experiences. If we want to change our trajectory, Sabah must: Expand international air links beyond short-haul regional cities. Invest in urban renewal, especially in Kota Kinabalu's decaying zones. Create signature festivals, shopping districts, and entertainment hubs that make tourists want to stay. Develop a clear, distinctive brand that tells the world what makes Sabah unique. The Time for Illusions Is Over Sabah has spent too long hiding behind impressive-sounding numbers that don't tell the full story. The data is clear: we are not competing where it matters most. Unless Sabah addresses its weaknesses head-on — with courage, investment, and vision — we will remain a secondary destination in a region that has left us behind. The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: [email protected]
Daily Express
29-06-2025
- Politics
- Daily Express
How Emergency affected Sabah and Sarawak: Both states yet to see MA63 autonomy fully restored despite revocation of the Emergency Ordinance in 2011
Published on: Sunday, June 29, 2025 Published on: Sun, Jun 29, 2025 By: Datuk Roger Chin Text Size: Few moments in Malaysian history have reshaped the constitutional fabric of the Federation as profoundly as the 1969 Emergency. For Sabah and Sarawak, the Emergency did not just suspend civil liberties — it laid the groundwork for a slow dismantling of the autonomy promised under the Malaysia Agreement 1963 (MA63). The Proclamation of Emergency in 1969, triggered by the 13 May riots in Peninsular Malaysia, profoundly reshaped Malaysia's constitutional framework. Beyond its immediate suspension of civil liberties, it initiated a centralisation of power that altered the federal structure originally negotiated in the Malaysia Agreement 1963 (MA63). Relying on Article 150 of the Federal Constitution, the Federal Government enacted a series of Emergency Ordinances that bypassed both democratic oversight and state consent. Many of these emergency-era laws continue to shape governance in Sabah and Sarawak today, despite the revocation of the Emergency in 2011. Importantly, Article 150(6)–(8) of the Federal Constitution shielded Emergency Ordinances from constitutional challenge while the Proclamation was in force. However, with the revocation of the Emergency in 2011, that protection no longer applies. These laws must now comply with the Federal Constitution or risk being struck down. Laws such as the Petroleum Development Act 1974 (PDA 1974) and the Territorial Sea Act 2012 (TSA 2012), which were derived from or rely on these Emergency ordinances, have outlived their legal justification. Emergency Ordinances - Federal Overreach Institutionalised Among the most impactful were six Emergency Ordinances that drastically reconfigured federal-state relations: Ordinance No. 1 (Emergency (Essential Powers) Ordinance 1969) gave sweeping powers to the Yang di-Pertuan Agong, including suspending elections and overriding any law. Ordinance No. 2 created the National Operations Council (NOC), centralising executive authority across all states. Ordinance No. 5 introduced detention without trial, severely weakening state judicial safeguards. Ordinance No. 6 authorised unilateral amendment or suspension of any federal or state law. Ordinance No. 7 redefined Malaysia's territorial sea as 12 nautical miles but limited state jurisdiction to only 3 nautical miles. Ordinance No. 10 extended federal laws such as the Continental Shelf Act 1966 and Petroleum Mining Act 1966 to Sabah and Sarawak, sidestepping constitutional safeguards. These ordinances disrupted the federal balance and centralised control over petroleum, law enforcement, and legislative powers. Territorial Boundaries Undermined - From Continental Shelf to 3 Nautical Miles Ordinance No. 7 and subsequently the Territorial Sea Act 2012 (TSA 2012) codified the restriction of state jurisdiction to 3 nautical miles from the coast. This legal sleight of hand over maritime boundaries set the stage for the more consequential centralisation of Sabah and Sarawak's petroleum wealth. This contradicts the 1954 North Borneo and Sarawak Orders in Council, which defined their boundaries as extending to the edge of the continental shelf. The application of TSA 2012 to Sabah and Sarawak is constitutionally suspect, as Article 2(b) of the Federal Constitution requires the consent of both the state legislative assemblies and the Conference of Rulers for any alteration of state boundaries. No such consent was obtained. Beyond legal infringement, this restriction has real-world consequences for marine resource rights, indigenous fishing communities, and state planning authority over maritime development. These limitations impact the exercise of Native Customary Rights (NCR), particularly among coastal and island communities whose traditional fishing zones now fall under exclusive federal jurisdiction. Petroleum Development Act 1974 - A Centralised Grab Passed during Emergency rule, the Petroleum Development Act 1974 (PDA 1974) vested ownership and regulatory control of petroleum in Petronas, under federal authority. Section 2(1) vests ownership in Petronas. Section 2(2) grants it exclusive regulatory powers. However, land and natural resources are matters under List II (State List) of the Ninth Schedule to the Constitution. The PDA was passed without the consent or adoption of the Sabah and Sarawak legislatures and without invoking Article 76(1)(c) or 76(2). With the revocation of the Emergency in 2011, the continued enforcement of the PDA in Sabah and Sarawak is open to constitutional challenge. Sarawak, for instance, has reasserted its rights under the Oil Mining Ordinance 1958 (OMO1958) and the imposition of State Sales Tax (SST) on petroleum products — a move upheld by the Court in Petronas v Comptroller of State Sales Tax, Sarawak [2020] 6 MLJ 1. The Frozen Special Grant Reviews - A Breach of Fiscal Federalism MA63 enshrined fiscal safeguards through Articles 112C(1) and 112D(4): Article 112C(1) entitles Sabah and Sarawak to a special grant. Article 112D(4) mandates that the grant be reviewed every five years. The first and only review occurred in 1969, but its recommendations were never implemented. For decades thereafter, no reviews took place. This dereliction, enabled by Emergency-era centralisation, amounts to a prolonged breach of constitutional duty. Even recent allocations were offered outside the constitutionally mandated framework. Emergency-Era Origins of the 1969 Grant Review The first and only formal review of the special grant due to Sabah under Article 112D of the Federal Constitution took place in 1969. However, it occurred during the nationwide Emergency, when Parliament had been suspended and federal authority was centralised under the National Operations Council (NOC). This context severely compromised the legitimacy and effectiveness of the review. Although the Federal Constitution envisages that such reviews must involve meaningful consultation and mutual agreement between the Federal and State Governments, the 1969 review was carried out in a top-down manner, without the participation or approval of the Sabah State Legislative Assembly. Moreover, while the review order was gazetted, its recommendations were never implemented. This amounted to a breach of Article 112D(4), which not only requires a review every five years but also assumes that each review is a substantive and binding constitutional process—not a discretionary or symbolic exercise. The Emergency framework at the time, reinforced by Article 150(6)–(8), insulated the federal executive from judicial scrutiny and eliminated ordinary mechanisms of accountability. As a result, Sabah was left with no constitutional remedy to enforce its entitlement. The absence of subsequent reviews—until recent efforts more than 50 years later—further entrenched a fiscal imbalance that denied Sabah the revenue it was due under the Malaysia Agreement 1963. In effect, Sabah's constitutional entitlement to special grants was frozen in both legal and fiscal terms. The Emergency enabled the Federal Government to bypass its duty under Article 112D, delaying not only a fair financial settlement but also the broader principle of equal partnership in the Federation. The legacy of this inaction persists to this day, and any new review must take into account the decades of underpayment and the urgent need for restitution. Federal Laws Imposed Without Consent During and after the Emergency, federal legislation was extended to Sabah and Sarawak without compliance with Article 76 of the Federal Constitution. Examples include: Education Act 1996 Local Government Act 1976 Under Article 76: Subsection (1)(b) requires a state request for Parliament to legislate on State List matters. Subsection (2) requires state consent to impose laws for uniformity. These constitutional safeguards were bypassed, eroding state autonomy and violating the spirit of MA63. Constitutional Supremacy and Post-Emergency Legality Article 4(1) of the Federal Constitution establishes that the Constitution is the supreme law of the Federation. Emergency Ordinances, while valid during the Emergency, lost immunity from judicial review once the Proclamation was revoked in 2011. Laws whose validity relied solely on Emergency powers must now comply with constitutional procedures or risk being ultra vires. The Constitution does not permit the permanent distortion of federal-state relations through temporary emergency measures. This includes the PDA 1974, TSA 2012, and all extended legislation not passed with Article 76 consent. Restoring Federal Balance - A Reform Agenda To undo the legacy of Emergency-era centralisation and revive true federalism, the following reforms are necessary: Restore Pre-1963 Maritime Boundaries Amend TSA 2012 or enact legislation reaffirming Sabah and Sarawak's continental shelf limits. Suspend or repeal its application to Sabah and Sarawak pending a new, equitable petroleum framework. Resume Article 112D Reviews Conduct overdue reviews, compensate for lost revenue, and institutionalise a permanent review mechanism. Identify, challenge, and repeal laws extended under Emergency powers that violate MA63 or lack state consent. Fulfilling the Promise of Malaysia Day A federation held together by historical agreements must not be allowed to drift apart through decades of constitutional erosion. The Emergency may be history, but its distortions are not. Sabah and Sarawak deserve not just rhetorical recognition, but a return to constitutional truth. The path to a stronger Malaysia begins with putting right what the Emergency put wrong. The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: [email protected]
