Part XI(B)
I. Why the unconstitutional and illegal setting up of the Federal proxy, MPKKP, is serious in the constitutional, legal and political histories of Sarawak?
(i) The paramount importance of the constitutional, legal and political histories of Sarawak on setting up of this Federal proxy and agent in Sarawak, namely MPKKP ([Federal] Village Community Management Council) would be unconstitutional and void against the seven entrenched provisions of the Federal Constitution (‘7FEs’), namely Articles 95, 95E(2), 76(1)(b)(c), 76(2), 76(4) and critical Items 4 and 13 (Adat) of the State List and illegal and invalidunder the 4 Protective Municipal Sarawak Ordinances (‘4POs’), as amplified in Part A, particularly the Community Chiefs and Headmen Ordinance 2004 (‘CCHO’) and Native Court Ordinance 1992 and Native Court Rules 1993, Local Authorities Ordinances 1996 (‘LAO’) and Native Law and Adat enforceable under Articles 160, 76(2), 145 and 150(6A). In brief, no Federal interference on Sarawak’s land and local government.
MPKKP would also be specifically against the spirit and entrenched constitutional and exclusive legal rights and duties of JKKK (the [Sarawak] Village Development and Security), a State Government’s arm and bridge to implement its local government and public administration of communities’ services in the local councils, with management committees or councils in the longhouses and kampungs at the remote stations in Sarawak. JKKK is part of the Adat from the bloodline and legacy of the Sultanate of Brunei, Brookes Tradition, British colonial government and FC before being codified in 2004.
(ii) Fundamentally, MPKK is quite different from the First Tsunami legislations of the PDA 1974 and 5 other Offending Acts which would be void and illegal to usurp Sarawak’s dominion or ownership of its O&G, mainly offshore in Sarawak’s Continental Shelf.
State Sales Tax (‘SST’) is sanctioned under IGC R62, Malaysia Act 1963 (‘MACT’), FC and State Sales Tax Ordinance 1998 (‘SSTO’). The fudged portions of Articles 95B(3) on Federal List and Item 8(j) on ‘oil’ and ‘petroleum products’ are void too. Yet, Petronas has usurped Sarawak’s exclusive right to issue PSCS in serious violations of that Proviso of Item 2 State List, 7FCs and 7PMs.
(iii) Now, MPKKP will be the Second Tsunami and Typhoon to hit the heart of Sarawak with waves of hologram used as the Federal proxy war’s digital ‘tools’, namely by making use of the paid Sarawakians from the 80-85 per cent of Sarawak’s O&G revenues, as Federal agents,to fight against Sarawakians onshore by penetrating, dividing and trying to conquer and rule Sarawak with pre-election decoders receiving Federals’ disguised ‘information’ blended with Federal directives, policies and programmes to have Federal-managed ‘local’ government and ‘administration’ with communities’ services specified to the proxies, followed by religious education.
The entrenched 7FEs were to prevent the diabolical politics of fragmentations and disunity in the longhouses and kampongs, now caused by the Federal’s proxy, MPKKP, head-long against JKKK formed under Sarawak Adat. That Items 4 and 13 have reinforced Article 95D that parliament is forbidden to lay hands on Sarawak’s land and local government and administration under laws and Adat including directives, policies and programmes with its exclusive local government services [communities]” and ‘local government [State] election’ that only lawfully allows JKKK, not MPKKP.
Irreparable and collateral damages will ensue with the infectious virus of Peninsular’s virulent and divisive culture imbued with acrimony of religious and racial legacy to be injected into the heartland of Sarawak among the good natured and simple villagers in the longhouses and kampungs with low immunity to this alien infectious culture.
(iv) More unfortunately, for the political quest under the principle of Machiavellianism where the ends justify all the means, PH Federal is trying to wrest the control of DUN in the next election at all costs.If that were to come to pass, PH local will inevitably be directed by Federal PH to approve retrospectively all the void, illegal and fudged provisions of the Federal Constitution and all the 5 Offending Acts related PDA1974 and others to be white-washed as ‘constitutional’ and ‘legal’ and waive all the 5-tier of constitutional entrenched provisions for Sarawak, as amplified in Article Part IA dated January 27, 2019. Sarawak must never follow Sabah’s histories.
The goal will be to reverse the DUN’s approval of 20 per cent royalty/SST first and keep 80 per cent to 85 per cent of Sarawak’s O&G’s revenues, to retrospectively legalise the 13 Federal Territories, not States, under Articles 2(a), 2(b) and 160, not to approve the ‘No two-third rule’ in parliament under the original Article 46 constitutionally and legally, to reverse the SST sanctioned under SSTO 1998, IGC R62 and MACT63 despite Article 95B(3) and Item 8(j) which have been fudged, so void and unenforceable per se: Marbury vs Madison (1803).
DUN will officially beaskedto repeal Oil Mining Ordinance 1958, per Petronas’s demand, and to amend Items 2(a), 2(c) 2(d) of the State List on O&G along with Items 4 and 13 (Native Law and Courts) in relation to local government and administrations with ‘promised’ development plans for Sarawak land, including NCR lands. Federal will harp on the least important and rejected Article I(b) while avoiding like a plague on the 7FCs, 7PMs and others, particularly on Article 2(1)(a)(b) on the void Federal Territories and 4 illegal and unconstitutional alterations of Sarawak boundaries amplified in Part VIII.
(v) PH (local) will use DUN to take away all the special rights of the natives, native law, adat, before downgrade them in the similar fashion as Act 354 to the aborigine status of Orang Asli which has little entrenched protectionsunder the FC with the jaundiced Federal’s and judicial’s ‘experiences’ and tinted glasses on NCR lands,Pulau Galau etc without respect of Native Territorial Domain and Land Code 1958 (amended). Article 11(4) of FC and Item I of State List on religion will be further amended.
Does our PM receive the correct legal advices on the nature and functions of law, apart from the Dicey’s Rule of Law, eloquently put by Edmund Burke: “There is but one law for all, namely, that law which governs all law, the law of our Creator, the law of humanity, justice, equity – the law of nature and of nations”?
II. What provisions of the FC and State Laws would be violated by Federal proxy, namely MPKKP? Are those breaches serious and inevitable? Yes.
1. As amplified in Part A of Article XI (A) on the Community Chiefs and Headmen Ordinance 2004 (‘CCHO’) from Section 6(A) to (F), subject to admissible evidence, there are also specifically entrenched constitutional taboos prohibiting directly and indirectly the Federal parliament to pass uniform laws and laws, including those circumventing directives, policies and programmes under administrative law, equity and native laws, Adat, and usages under Articles 95D and 76 touching on Sarawak land and local government and public administration with multifarious communities services.
2. Complaints against MPKKP should be filed in the original jurisdiction of the [Constitutional] Native Courts under Native Courts Ordinance 1992 (‘NCO’) and Native Court Rules 1993, namely in the Native District Court with a local magistrate and two assessors, reinforced by Articles 95D, 95E(2) 76(1)(b)(c), 76(2), 76(4), Items 4 and 13 on Native Law, Adat and usage specifically in the State List, together with Article 95 B (1)(a), the 7FEs touching on Sarawak’s land and local government including the 4POs.The NCO and Court Rules would need to be restructured and filled with more upgraded Sarawak magistrates and New Native Court Judges and Registry.
Under the Native Courts, the Federal AG has no jurisdiction under Article 145(3); parliament cannot extend its powers against the administration of Native Law and Adat even during Proclamation of Emergency under Article 150(6A).
3. On 95E(2) Sarawak is excluded from the Federal Government or National Land Council or National Council for local government pertaining to the national plans or Federal Ministry of Rural Development or its proxies MPKKP on the ‘land utilisation’, ‘local government and development etc’.
4. MPKKP, a ‘mock copy’ of JKKK, is parallel in appearance and function that would interfere and impinge illegally on the JKKK’s rights and duties on Sarawak land and local government under that Item 4 with 7FEs and 4POs, as amplified in Part XI (A).
5. (i) Article 76(1)(b) & (c)forbid the passing of uniform laws of ‘two or more States,’ unless requested by DUN under 76(1)(c). The 5 States, excluding Sabah, outside PH control, are Federal political targets of using MPKKP to canvas for election not merely for selective disseminating ‘information’, forbidden under Item 4 of no involvement on the ‘local government election’ unless by JKKK, instead of using the normal local PH component parties for political campaigning. (ii) This taboo under Article 76(4) includes Native laws andland under Adat under Article 76(2). (iii) Under Article 76(2) no Federal law or directives etc shall be made against any matters of Native Law or Custom unless Sarawak has been ‘consulted’ which does not mean to have been informed. (iv) The words ‘been consulted’ which were again being fudged and void in Article 76(2) on the Native Law or Adat were conspicuously absent in the IGC R62 and MACT63.
(v) So, “until the…. State has consulted” must be expunged in view of the absolute exclusion of Federal law to be applicable to Sarawak’s native law, custom under the Constitutional Native Courts of Sarawak where the Federal AG has no jurisdiction and unaffected by Proclamation of Emergency.
(vi) The fudged portion must be expunged under Article VIII of MA1963 also for good orderas Items 4 and 13 of the State List, have prohibited Federal complete interference on Sarawak’s ‘local government [and administration]’, particularly in the village councils, on management committee on ‘local government services’ including the community services of various nature and descriptions also covered under native laws, Adat, usage and ‘local government election’.
(vii) The Chiefs and Headman have exemptions undersection 8(2) to be involved in a political party and be councilors in a local authority. (viii) Item 13 under Article 95B(1)(a) of the State List is concerning the protection of Native Law, Adat and usages, including ‘personal law…testate’, with no Federal interference except that the last fudged portion, not found on the State List, Item IA, ANNEX ‘A’ to IGC R62 nor MACT63, starting from, “shall include jurisdiction in respect of offences except in so far as conferred by Federal law”, is void and to be expunged: Marbury vs Madison (1803).
Thisis similar to the fudged Item 8(j) Federal List for sale tax which reads as follows: “Subject to item 2 (c) in the State List; Development of mineral resources, mines, mining, minerals and mineral ores.” From there onwards, the fudge portions, not found in 8(j) in IGC R62 nor in MACT63 which state as follows: “oils and oil fields; purchase, sale, import and export of minerals and mineral ores; petroleum products; regulation of labour and safety in mines and oilfields” are void..
III. Why Sarawak GPS has to win the State elections, but not aligned to the Federal-led-government anymore?
(1) Basically, the Federal Government is using its proxy in MPKKP and its revenues of 80-85 per cent from Sarawak’s O&G to fight against Sarawak’s Government and interest. Arnold Toynbee’s cyclic history will be repeated. It is best for GPS to win all the State elections and work amicably with the Federal PH-led or BN-led or new group-led Federal Government without being in the same political alignment with the Federal-led party, otherwise Sarawak will suffer again, as evident from the PH local now, even as non-Sarawakian component parties.
(2) MPKKP as the Federal proxy cannot operate without impinging at the State level the duties and rights of Chiefs and Headmen of JKKK as demonstrated in Article Part XI A. Chief includes “a Chief of a community appointed as a Temenggong, or Pemanca or Penghulu under Section II CCHO 2004.” Headman means “a headman of a community appointed as a KetuaKaum, or Ketua Kampung or Tua Kampung or Taui Uma or Kapitan”. MPKKP has no legal, constitutional rights and rights under Adat and 7FEs and 4POs to run a ‘two-horses’ race with JKKK in Sarawak! The Constitutional Native Courts must confirm this constitutional mirage.
IV. What is Federal Government’s real target in using proxies of MPKKP? What is the State Government’s responses?
(i) PH Federal would want to win the next election with MPKKP’s ‘guerilla war’ tactics. Even if it loses, it wants a permanent political base with the powerful Federal proxy of MPKKP sprawling all over the longhouses and villages with better paid proxies, better equipped with digital technology to sow the seeds of discord and ‘hatred’ unwittingly under assumed ‘populism’, to propagate Federal’s directives and programmes and give direct grants instead of normally through the State Government. Recruiting relatives of the Chiefs or Headmen for salaried MPKKP’s Chiefs or assistants would get tremendous responses, but also create havoc, divisive and confusing leadership and culture in the ‘Rural Kingdoms’.
(ii) A ‘war’ was declared on JKKK which so far has convinced the majority of the villages or longhouses to reject the MPKKP and support the present local government and administration, though there are some endorsements of MPKKP.
(iii) For the 20 per cent royalty/SST we hope the 35 per cent to 53 per cent of split barrels/share profit of O&G (‘SB/SP’) less cost plus direct to Federal Treasury account will be reinstated in the accounts of Petronas for Sarawak’s portion to render the correct figures filed with the SSM for true computations on royalty and SST under corporate governance. How much Sarawak has been shortchanged for the last 43 years based on SSM for payment but not on Sarawak O&G’s production? In 2017, there was a whooping RM19.298 billion difference of net profit and productions from Petronas accounts filed with SSM as against the publicly declared net profit. Restitution would be in order.
(iv) The Court Discoveries of 43 years of Petronas’s Accounts and books from the Company Auditors and Auditor General could be embarrassing and would follow up with imaginable injunctions backed up with immigration powers.
We hope there is no need to go there, but to implement equitably the Rule of Law, FC, Land Code, OMO 1958, and SSTO 1998.
For the appeal on the decision of the State Comptroller of SSTor for refusal and enforcement of non-payment, the State itself as an ‘aggrieved person’ to the State Financial Authority (‘SFA’), SFA’s “decision thereon shall be final and not subject to review in any Court” under Section 57(2) SSTO 1998 to exhaust the local remedies. With the SFA’s final decision, only then the State Government would apply to court forun challengeable payments, security for payments and forfeiture enforceable against all taxable persons under Sections 26 and 45 of SSTO 1998. Taxable amount must be declared under Sections 24 and 25 with payments made within 30 days’ notice:
Then the Board of Review appointed by Head of State can only hear appeals from taxable persons on assessment, tax surcharge or penalty for late payment under Section 57(3).
For payment of 15 per cent royalty/SST there is the balance of at least RM25 billion due to Sarawak traceable by the Federal payment system from the additional 5 per cent royalty accuring daily, assured by Tun Razak for Sarawak to abort its Declaratory Judgement in the Privy Council on the void and illegal PDA1974 under Article VIII of MA1963 as the quid pro quo, advised by the Federal AG then, Tan Sri Kadir. Oral assurance is enforceable under customary International Law and Article 3(a) of the Vienna Convention on the Law of Treaties, as MA1963 is also a multi-lateral Treaty.
(v) PH Federal’s MPKKP willinterfere or infringe the State’s ‘local government elections’ prohibited under that Item 4 by dishing out more ‘cost-nothing-nor-legally-binding’ promises on the development of land, agriculture and local government and administration through MPKKP only for election purposes.
(vi) Where is the guarantee that the Rule of Law of Dicey and Edmund Burke’s quintessence of Law will actually be implemented on land, local government and O&G, and even if PH local were to win the next State election, though not looking that promising?
History explains the past; history points to the future; history will ‘condemn’ those ‘to repeat’ the same forgotten lessons. Unfortunately, the historical ramifications of the political alignment with the Federal-led-government will never change, nor its one-sided inequitable and unfair legacies on Sarawak’s O&G, in serious violations of the entrenched constitutional provisions unless the Rule of Law is implemented fairly, equitably and promptly, not until when the O&G runs dry.
Then Sarawak-exit would be allowed. When will the quota legislation be imposed? That is Sarawak’s right similar to timber!
So, Sarawak Government was unfortunately forced to go to court in implementing the 5 per cent SST under SSTO 1998.The Constitutional Native Courtmust hear MPKKP’s cases.
Hope our PM will carefully implement the right laws for the rebirth of history by re-energising the Enlightenment to honour and fulfill the constitutional commitments for a fair and equitable shared wealth with Sarawak getting 20 per cent royalty/SST and Federal/Petronas 72 per cent on Sarawak’s O&G or ‘Musang King Durians’ and respect the JKKK under Sarawak Adat and 7FEs and 4POs without employing the void and illegal MPKKP targeted for Sarawak but not Sabah as ‘unequal partners’.
Let the equitable, fair, legal and political settlement be his stateman’s shining legacy.
The views expressed are those of the author and do not necessarily reflect those of The Borneo Post and Borneo Post Online.