KUALA LUMPUR (June 8): National oil company Petroliam Nasional Bhd (PETRONAS) wants its petition regarding the constitutionality of its operations in Sarawak to be heard separately from the state government’s petition at the Federal Court.
In court documents submitted on May 26 through its solicitors Messrs Mohd Hanafiah Zakaria, the national oil company sought to amend its petition and clarify that it does not wish to consolidate its case with the state government’s.
The Edge obtained access to the documents through a file search. Separately, a representative from PETRONAS’ legal firm, speaking anonymously, confirmed that the company is seeking its petition to be heard separately from the Sarawak government’s case.
If the court allows PETRONAS’ application, the company will have seven days to serve its amended petition to both the Sarawak and Malaysian governments, who are named as respondents. The respondents would then be permitted to amend their defences accordingly.
Meanwhile, a case management of the matter is being held before the Federal Court deputy registrar Azaraorni Abd Rahman on Monday, along with the Sarawak government’s petition to possibly decide a hearing date.
PETRONAS had initially filed its petition in April for constitutional questions to be referred and be decided by the Federal Court in its original jurisdiction, after leave (permission from the court) was obtained from the Chief Judge of Malaya Datuk Seri Hashim Hamzah on March 16 this year.
Originally, PETRONAS wanted its petition to be heard together with the Sarawak government’s petition as the state did not need to gain leave to have the constitutional question heard being the government.
PETRONAS filed the motion for leave in January this year, where it had sought leave to challenge the inconsistency between the Petroleum Development Act 1974 (PDA) and the Sarawak Distribution Gas Ordinance 2016 (DGO), among others.
It filed the motion in January to gain leave to ensure that it continues to operate in full compliance with the applicable laws and sound governance practices as a result of competing federal and Sarawak state laws.
PETRONAS’ lead counsel Datuk Dr Cyrus Das, who appeared with Khoo Guan Huat, when met after the proceedings in March said following leave being granted to the national oil company, they would file the petition within 21 days, and seek for a full Federal Court bench to hear the challenge.
“A full apex bench may consist of three, or five, or more judges,” Cyrus said.
Sabah entering into the picture
PETRONAS’ latest submission came just over a week after a Sabah-based group, the Registered Trustees of Sabah Action Body Advocating Rights (Sabar), applied to intervene in the Sarawak government’s petition on May 18.
Sabar, in its notice of motion on May 18, sought the apex court permission to participate in the Sarawak government proceedings as an intervener on the following issues affecting the state, namely:
- The validity and continued application to Sabah of the Continental Shelf Act 1966, and the Petroleum Mining Act 1966;
- The continued validity and binding effect of the North Borneo (Alteration of Boundaries) Order in council 1954 and the North Borneo (Definition of Boundaries) Order in council 1958, which define the territory of Sabah, including its continental shelf;
- The validity and continued operation of the Mining Ordinance 1960 of Sabah in respect of onshore and offshore areas after June 19, 2012.
Sabar also said that the constitutional questions raised in a 2023 originating summons pending at the High Court of Sabah and Sarawak in Kota Kinabalu be heard together with this suit.
Should the NGO be granted leave, Sabar will be able to file its court documents, affidavits and written submissions to the apex court.
PETRONAS has filed an affidavit last Thursday (June 4) to object to Sabar’s application to intervene in the Sarawak petition.
Such development may be decided in the case management before Azaraorni on Monday.
Sarawak’s request to amend the petition
Separately, the Sarawak government’s request to amend its petition on May 13 claimed that Sarawak has the exclusive power to legislate over land in Sarawak under Item 2 of List II (State List) in the Ninth Schedule of the Federal Constitution, including (c) permits and licences for prospecting for mines, mining leases and certificates.
It also argued that Parliament enacted the Petroleum Development Act (PDA) without any request from the Sarawak State Legislature under Article 76(1)(c) of the Federal Constitution. The PDA law aimed to vest petroleum — part of Sarawak's land — in PETRONAS and included a vesting order in the Schedule Parliament. According to Sarawak, Parliament has no authority to prescribe such a vesting order because it is essentially a mining lease or prospecting licence, which falls outside Parliament's legislative powers.
Only the Sarawak Legislature has the authority to make laws relating to permits and prospecting licences, mining leases or certificates for the mining of mineral resources such as petroleum, which are an interest in land.
The Sarawak government also alleged that the subject matter or entry of land, including permits and prospecting licences, mining leases and certificates in Item 2(c) of List II of the Ninth Schedule of the Federal Constitution covers also ancillary or subsidiary matters as to the authority or person empowered to grant, issue or sign any licences, mining leases and certificates for the exploration, exploitation, winning petroleum from onshore and offshore land in Sarawak.
Sarawak has long argued that the PDA was passed during the emergency period without consent; therefore, its state laws, especially the Oil Mining Ordinance (OMO 1958) take precedence.
Further, the 2021 amendments to the Federal Constitution, which recognise MA63, have provided a stronger legal foundation for Sarawak to demand the return of its powers over its own resources.
MA63 is a pivotal document outlining the terms under which Sabah and Sarawak merged with the Federation of Malaya and Singapore in 1963 to form the Federation of Malaysia. The Report of the Inter-Governmental Committee spells out the caveats and safeguards that have been the source of the provisions in the MA63, giving the states a level of autonomy that sets them apart from other states in Malaysia.