This article explores how the invocation of emergency powers in Malaysia led to a permanent restructuring of resource ownership, particularly impacting Sabah and Sarawak, and raises fundamental questions about constitutional integrity and the nature of federalism.
The Genesis of Extraordinary Powers: Article 150 and the PDA 1974
Under Article 150 of the Federal Constitution, the federal government was granted extraordinary authority to legislate beyond normal constitutional limits during an emergency. This included matters that would typically fall under state jurisdiction. The emergency declared in Malaysia did not end quickly; it lingered for years. It was during this prolonged period, specifically in 1974, that Parliament passed the Petroleum Development Act (PDA) 1974.
This fact is crucial because, under normal constitutional arrangements, land and natural resources unequivocally belong to the states. This is not a matter of opinion but a fundamental principle enshrined in the state list of the federal constitution. For Sabah and Sarawak, this principle is further reinforced by special safeguards linked to the Malaysia Agreement 1963 (MA63), including Articles 95D and 161E, which were specifically designed to protect state rights from unilateral federal alteration.
However, emergency powers fundamentally altered this playing field. Utilizing the authority derived from Article 150, the Malaya-dominated federal government enacted the PDA 1974. This Act vested ownership of all petroleum in a federal corporation, Petronas, and was applied nationwide, encompassing Sabah and Sarawak. Crucially, the PDA 1974 did not require endorsement by the Sabah or Sarawak State Legislative Assemblies. In essence, a law profoundly affecting state-owned resources was passed without the normal constitutional consent mechanisms, solely because the country was under emergency rule.
From Temporary Necessity to Permanent Entitlement
This sequence of events highlights an uncomfortable truth: emergency powers, while intended to manage crises, are not meant to permanently restructure ownership. If an emergency necessitates temporary control to stabilize the country, that is understandable. However, once stability returns, such extraordinary powers are supposed to be rolled back. Yet, the PDA 1974 never expired, and the ownership of petroleum resources was never returned to the states. The emergency justification quietly transitioned into a permanent reality.
To illustrate this, consider an everyday analogy: if someone takes food during a crisis merely to survive, most societies would understand. But if that same person later claims ownership of the kitchen, controls the supply indefinitely, builds an empire from it, and offers the original owner a mere 5%, it ceases to be an emergency measure. It becomes a permanent appropriation, justified by a moment that has long passed.
The Unanswered Constitutional Question
It is important to remember that the formal emergency ordinances were revoked in 2011. The emergency officially ended. However, the law made under that emergency – the law that transferred ownership of Sabah and Sarawak's petroleum – remains fully in force. This raises a critical constitutional question that often goes unanswered: Which article allows emergency powers to become permanent ownership?
Article 150 was never intended to erode Article 95D, nor was it meant to override MA63 indefinitely. It was certainly not designed to transform equal partners into perpetual resource contributors. If an emergency persists for 50 years, it ceases to be an emergency; it becomes policy, structure, and ultimately, a belief system. This system is designed to make a temporary necessity sound like a permanent entitlement.
Conclusion: The Unfinished Business of Malaysia
The core issue is not whether an emergency existed, but why the emergency ended, but the taking of resources did not. This represents the unfinished business of Malaysia itself, a narrative where foundational agreements and constitutional safeguards were circumvented under the guise of temporary measures, leading to lasting implications for the federal structure and resource distribution.
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