Kota Kinabalu: Kapayan Assemblyman Chin Tek Ming criticised the written parliamentary reply by Datuk Seri Azalina Othman Said, saying it reflects a fundamentally flawed understanding of constitutional structure, federalism, and the legal status of the Malaysia Agreement 1963 (MA63).
The reply asserts that MA63 contains no provisions on oil and gas, and that full ownership therefore vests in Petronas under the Petroleum Development Act 1974 (PDA).
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“MA63 is not a sectoral statute. It is a constitutional compact that safeguards the continued operation of Sabah’s and Sarawak’s pre-existing powers, laws and jurisdiction at the point of entry into the Federation,” he said in a statement, Thursday.
Chin said that at the time of Malaysia’s formation, land and minerals were matters of state jurisdiction, constitutionally entrenched through the State List in the Federal Constitution.
“Petroleum, being a natural resource located in or under state land and territorial waters, was therefore within state authority unless expressly transferred — which it was not.
“To now argue that because MA63 does not expressly mention ‘oil and gas’, Sabah has no claim, is to invert the entire purpose of MA63. The Agreement was intended to protect against federal encroachment, not to provide a legal vacuum for later centralisation,” he added.
Chin said the Federal Government’s reliance on the PDA exposes the weakness of its argument, explaining that the PDA was enacted 11 years after MA63 and was never incorporated into MA63 nor constitutionally entrenched with the consent of Sabah and Sarawak, as required for laws affecting state rights.
He further noted that pre-existing state petroleum laws and regulatory frameworks were never repealed by constitutional amendment, citing Sarawak’s Oil Mining Ordinance 1958 as an example.
“The federal claim to exclusive control is therefore not rooted in original constitutional design, but in later political dominance and contractual coercion, including royalty agreements entered into under severe imbalance of bargaining power. This is not constitutional consent. This is constitutional displacement.
“To equate MA63 with PDA, or to suggest that PDA lawfully supersedes MA63 safeguards, is legally unsustainable. MA63 is part of the constitutional architecture of Malaysia; PDA is not,” he said.
Chin urged that institutional reform must be carried out in a way that strengthens constitutional governance, and it cannot be declaratory, selective, or executive-driven where constitutional rights are concerned.
He also advised against pre-judging constitutional disputes that are actively before the courts, including disputes over regulatory authority and revenue entitlement in the Borneo states.
“There has been no constitutional amendment, no lawful surrender, and no valid legal mechanism that extinguishes Sabah’s entitlement to revenue derived from Sabah, including oil and gas. The obligation to pay Sabah its 40 per cent entitlement has never been repealed, suspended, or replaced by any valid constitutional process.
“The federal position today is not based on the founding agreement of Malaysia, but on post-MA63 legislative expansion of federal power, which is precisely what MA63 was designed to prevent,” he added.
