By Daniel John Jambun, President Borneo”s Plight in Malaysia Foundation (BoPiMaFo)
KOTA KINABALU: Borneo’s Plight in Malaysia Foundation (BoPiMaFo) refers to the recent article by Hafiz Hassan, titled “Federal Constitution is a living document and cannot remain static”, in which the learned writer argues that the Federal Constitution must be adaptable and amendable to meet changing circumstances.
BoPiMaFo agrees that the Constitution must be capable of adaptation.
However, in light of the impending Federal Court proceedings involving Petroliam Nasional Berhad (Petronas) and Petroleum Sarawak Berhad (Petros), it is essential to clarify an important constitutional principle:
A living Constitution evolves — but it does not erase its own structural foundations.
This Case Is Not Merely Commercial
The dispute between Petronas and Petros may formally arise from petroleum regulatory and legislative questions. But at its core, the litigation raises issues that could affect:
* Federal legislative competence,
* State proprietary interests,
* Revenue assignments under the Tenth Schedule,
* And the balance of federalism in Malaysia.
Any Federal Court pronouncement on the Petroleum Development Act 1974, the Continental Shelf Act 1966, or related federal legislation will not operate in isolation.
It will shape the constitutional relationship between the Federation and the Borneo States.
Sabah cannot treat this as Sarawak’s issue alone.
The “Living Constitution” Argument — Incomplete Without Structural Limits!
In his article, Hafiz Hassan relies on the earlier Federal Court decision in Loh Kooi Choon v Government of Malaysia, which emphasised Parliament’s formal amendment power under Article 159.
However, constitutional jurisprudence has since evolved.
In Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and reaffirmed in Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak, the Federal Court recognised that the Constitution contains a basic structure that cannot be destroyed even by a two-thirds majority.
Federalism is part of that structure.
If federalism forms part of the Constitution’s identity, then any interpretation of petroleum legislation must be consistent with:
* The federal balance struck at formation,
* The constitutional safeguards applicable to Sabah and Sarawak,
* And the structural autonomy contemplated in 1963.
A “living Constitution” cannot be interpreted to justify centralisation that nullifies founding safeguards.
Federalism Is Not Administrative Convenience
Sabah and Sarawak did not enter Malaysia as identical units to the states of Malaya.
Special amendment procedures — including Article 161E — exist precisely because the constitutional compact recognised distinct safeguards for the Borneo States.
The petroleum dispute now before the Federal Court must be analysed within this federal framework.
The question is not whether the Constitution can evolve.
The question is whether evolution can extinguish foundational guarantees.
Modern jurisprudence answers that question clearly: it cannot.
Why Sabah Must Pay Attention!!!
If the Federal Court determines constitutional questions affecting petroleum governance without Sabah’s participation, precedent will crystallise that binds Sabah in future disputes.
Constitutional silence today may become constitutional constraint tomorrow.
BoPiMaFo therefore urges that any discourse surrounding the petroleum litigation — including arguments grounded in constitutional flexibility — must acknowledge that:
1. The Federal Constitution has structural limits.
2. Federalism forms part of its basic architecture.
3. The 1963 federal compact cannot be reduced to ordinary statutory interpretation.
The Federal Constitution is indeed a living document.
But it is a living federal Constitution.
It must grow within the structural framework that gave birth to Malaysia — a framework that includes constitutional supremacy, separation of powers, and meaningful federal balance.
The petroleum litigation now before the Federal Court is not merely about hydrocarbons.
It is about constitutional identity.
BoPiMaFo stands for a Malaysia that evolves — without dismantling the foundations upon which Sabah entered the Federation.
