By Daniel John Jambun, President Borneo’s Plight in Malaysia Foundation (BoPiMaFo)
KOTA KINABALU: Borneo’s Plight in Malaysia Foundation (BoPiMaFo) notes the continuing public debate concerning the Petroleum Development Act 1974 (PDA 1974).
BoPiMaFo respectfully submits that the issue extends far beyond petroleum. It raises an important constitutional question concerning the nature of the constitutional settlement upon which Sabah and Sarawak agreed to form Malaysia in 1963.
The question is not whether Parliament generally possesses legislative authority. Parliament undoubtedly has extensive powers under the Federal Constitution.
Rather, the constitutional question is this:
Can Parliament, through an ordinary Act of Parliament, lawfully alter or diminish constitutional safeguards and state rights that formed part of the constitutional arrangements upon which Sabah and Sarawak entered the Federation of Malaysia?
This question deserves careful judicial consideration.
The constitutional arrangements reflected in the Inter-Governmental Committee (IGC) Report, the Malaysia Agreement 1963 (MA63) and the Federal Constitution formed the legal and constitutional foundation of the Federation of Malaysia. They recognised that Sabah and Sarawak would retain important constitutional safeguards, including significant legislative authority over land and natural resources.
BoPiMaFo is not asserting that the Petroleum Development Act 1974 is unconstitutional. That is a matter ultimately for the Federal Court to determine.
Rather, BoPiMaFo respectfully submits that there exists a serious constitutional question as to whether an ordinary Act of Parliament may lawfully alter or diminish constitutional arrangements that formed part of the legal foundation upon which Sabah and Sarawak agreed to establish Malaysia.
The significance of this issue extends beyond petroleum.
If constitutional safeguards negotiated at the formation of Malaysia may subsequently be altered through ordinary legislation, similar constitutional questions may arise concerning other constitutional protections enjoyed by Sabah and Sarawak, including financial arrangements, legislative powers, administrative autonomy and other special constitutional safeguards contained in the Federal Constitution.
This is therefore not simply a debate over petroleum resources.
It is a constitutional question concerning the supremacy of the Federal Constitution and the limits of Parliament’s legislative authority.
BoPiMaFo believes these important constitutional questions deserve authoritative determination by the Federal Court in its role as the guardian and final interpreter of the Federal Constitution.
Ultimately, constitutional rights should not depend upon changing political circumstances or governmental discretion. They should be protected according to the Constitution itself.
Accordingly, BoPiMaFo believes the real constitutional issue is not whether the Petroleum Development Act 1974 represents good or bad public policy.
The fundamental question is whether Parliament may, through ordinary legislation, lawfully modify constitutional arrangements that formed part of the constitutional settlement establishing Malaysia.
If constitutional safeguards negotiated at the formation of Malaysia may subsequently be altered by ordinary legislation, then a fundamental constitutional question inevitably arises:
What constitutional guarantees made to Sabah and Sarawak can truly be regarded as secure?
BoPiMaFo believes that this question deserves careful and authoritative judicial determination in accordance with the Federal Constitution and the rule of law.
