TSA, continental shelf ‘non-negotiable’ under MA63 Council – State AG

KOTA KINABALU (Sept 21): The Territorial Sea Act 2012 (TSA 2012) is inapplicable to the State of Sabah and the continental shelf remains the territory of the State as declared by the North Borneo (Alteration of Boundaries) Order in Council 1954, said State Attorney-General Datuk Brenndon Keith Soh.

He said this claim had been officially recorded on September 19, 2024 as being “non-negotiable” under the Malaysia Agreement 1963 Action Council (MA63 Council) chaired by the Prime Minister. Notwithstanding that there has been significant progress under the MA63 Council on other State claims and rights, the TSA 2012 and continental shelf remain on the “agree to disagree” list, he said in a statement on Saturday.

Brenndon added Deputy Prime Minister Datuk Seri Fadillah Yusof had further stated that these matters will continue to be deliberated at the highest level between the Prime Minister, Chief Minister of Sabah and Premier of Sarawak.

“We will continue to uphold the State Government’s position moving forward.

As to the recent finding of the High Court to decline our proposal for assistance as amicus curiae, we have the utmost respect for the decision of the learned High Court judge.

“The Sabah Action Body Advocating Rights’ (Sabar) had supported our offer of assistance but the Federal Attorney General had objected to our intended role.

In any event, it is the discretion of the court to determine whether our assistance is required or not to decide the legal dispute between these two parties. In this case, the court decided otherwise.

“Despite this outcome, we remain sincere in our offer of support to provide the State’s official legal views on this matter of public interest. Rest assured, we will certainly continue to monitor the developments of this case very closely,” said Brenndon.

As stated in the ruling of the court, he said it remains open for the State Government to intervene as a party in the legal proceedings and this option will be rigorously considered amongst all other options depending on the result of the MA63 Council on this matter.

On Friday, a High Court here declined an application filed by the State Government to act as an amicus curiae in the Sabar’s challenge against the TSA 2012.

In his reserved verdict, Justice Alexander Siew How Wai ruled that the court was of the view it may not be appropriate for the State Attorney General Chambers (SAGC) to be an amicus curiae in the litigation.

The judge also said that the court cannot rule out the possibility that the State Government at a later stage apply to intervene, in other words, to be formally a party to the present litigation.

“The court also cannot rule out the possibility one or both of the existing parties to this litigation may at some stage apply to join the State Government as a party,” said the judge.

The SAGC had on September 11 applied for leave to act as an amicus curiae in the originating summons (OS) of Sabar.

The plaintiff is seeking from court a declaration that the Continental Shelf Act 1966 and Petroleum Mining Act 1966 is inapplicable, unconstitutional, invalid, null and void in the territory of Sabah after June 19, 2012;

The plaintiff further sought from court a declaration that the territory of Sabah, after the annulment of the Proclamation of Emergency of 1969 on June 19, 2012, includes the continental shelf under the North Borneo (Alteration of Boundaries) Order in Council 1954;

Apart from that, they also sought from court declarations that the Mining Ordinance 1960 is valid in Sabah after June 19, 2012;

They also sought a declaration that Section 3(3) Territorial Seas Act 2012 which limits the territorial waters of Sabah to three nautical miles is inapplicable, unconstitutional, invalid, null and void in Sabah as of June 22, 2012;

Finally, a declaration that the territorial waters of Sabah, after the annulment of the Proclamation of Emergency of 1969 on June 19, 2012, includes the 12 nautical miles of sea under the Convention on Territorial Seas and Contiguous Zone 1958 and North Borneo (Definition Of Boundaries) Order In Council 1958; cost and any further or other relief deems fit.

In September 2023, Sabar had filed the originating summons (OS) questioning the validity of the TSA 2012, which limits the State’s maritime boundary to only three nautical miles, had named the government of the Federation of Malaysia as the sole defendant in this OS.