Getting territorial over the sea’s bounty
PETALING JAYA: The Territorial Sea Act 2012 (TSA) has hit the headlines again, after much discussions on issues related to the Malaysia Agreement 1963 (MA63).
The TSA is among the four unresolved issues that the Special Council on MA63 is addressing. The previous Pakatan Harapan administration had resolved 17 of the 21 MA63 issues.
For years, politicians, particularly those from Sabah and Sarawak, have been speaking out on the issue which has also been used as a platform in various general and state elections.
FMT takes a closer look at what the TSA is all about, its history, why the federal government wants to impose the Act, and why Sabah and Sarawak resist its implementation.
What is the Territorial Sea Act 2012 (Act 750)?
The TSA is a law that was passed by Parliament in 2012. Essentially, it outlines the limits of the area of sovereignty of the country and its states from the coastline.
This includes the sea, the seabed, and the subsoil, which is the layer of soil underneath the seabed.
While international law limits the Malaysian territorial waters to 12 nautical miles (22km) from the coast, the TSA limits the states’ waters to three nautical miles (5.5km) from the coast, including for Sabah and Sarawak.
Before 1963, Sabah and Sarawak, as independent nations, had sovereignty over waters up to 12 nautical miles from their shores.
Why was it introduced?
In 2011, then prime minister Najib Razak repealed three emergency proclamations declared by previous Yang di-Pertuan Agongs in 1966, 1969, and 1977.
Under the Emergency (Essential Powers) Ordinance No. 7 of 1969, which came into force on Aug 10, 1969, the territorial waters of all states were limited to three nautical miles.
The repeal of the emergency proclamation meant that the territorial waters of states, notably the oil-producing states of Sabah, Sarawak, Kelantan and Terengganu, were no longer capped at three nautical miles.
Nazri Aziz, who served as de facto law minister when the TSA was passed, said the law was in line with the Law of the Sea Convention 1982 (LOSC), a multilateral treaty governing oceans.
“The LOSC is a treaty involving countries, not states. We are a party to the LOSC. To enforce the provisions of the LOSC, we needed the TSA,” he said.
What is the issue with the TSA?
The TSA has come under criticism from Sabah and Sarawak politicians and activists who describe the law as “unconstitutional” as it works against the rights and interests of the two Borneon states.
Warisan deputy president and Penampang MP Darell Leiking said the TSA is unconstitutional as it violates Article 2(b) of the Federal Constitution which prohibits any alteration of the boundaries of a state without the consent of that state (expressed by a law made by the legislature of that state) and of the Conference of Rulers.
“The federal government should not have rights over our own land and sea boundaries (and its continental shelf) and all these should be dealt with by Sabah and Sarawak,” he said.
He said that although the Federal Constitution states that the federal government has full authority over security matters, this does not include matters related to marine resources and minerals.
“The enforcement of the TSA means that Sabah will be denied revenue from resources beyond three nautical miles. The economic implications are obvious and we can never monetise our own resources.”
What is the stand of affected states?
Sabah:
In April, Sabah deputy chief minister Jeffrey Kitingan confirmed that the state assembly had never assented to the expansion of the TSA to include Sabah.
Kitingan, who leads STAR, a component party in the ruling Perikatan Nasional coalition, demanded that the federal government limit the scope of the “unconstitutional” TSA to the peninsula only.
Sarawak:
In 2018, Sarawak chief minister Abang Johari Openg openly spoke against the TSA insisting his state’s territorial waters extended to 12 nautical miles from the coast and not three nautical miles as specified under the act.
He said the TSA is not valid because Sarawak had never consented to the amendment to the boundary of its territorial waters in Parliament.
Kelantan:
In 2015, the Kelantan state assembly approved a motion rejecting the TSA.
Then state human development, education and higher education exco Mohamed Fadzli Hassan said the TSA denied Kelantan the rights to receive petroleum royalties of 5%.
What others have previously said on the TSA
“Parliament is the highest law-making body in the federation but this doesn’t mean Parliament can, with impunity, invoke the right to contravene the Constitution in making these laws.” – MA63 activist Zainnal Ajamain.
“No law was passed in our Sarawak state assembly to effect the altering of the boundary of Sarawak, and further, the Territorial Sea Bill 2012 tabled in Parliament did not stipulate that the prior consent of the Conference of Rulers had been obtained.” – Batu Lintang assemblyman See Chee How.
“This is a constitutional requirement that is provided under Article 2 of the Federal Constitution. Failure to obtain such prior consent would render the said Act void or not binding on Sabah. That being the case, our state will have territorial control over the continental shelf.” – Former Liberal Democratic Party president Teo Chee Kang. - FMT
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