Experts say TSA 2012 valid unless declared otherwise by court
“States lack the authority over federal legislative matters. Terengganu’s dissatisfaction with a mere three nautical miles of fishing rights appears valid, yet the law was duly passed and legitimate.
(NST) – Law experts say that the Territorial Sea Act 2012 (TSA 2012) has legal validity nationwide, leaving all state legislatures no choice but to acknowledge it.
They were commenting in light of the recent dispute between the Federal and Terengganu governments over the validity of the Act.
The Terengganu assembly had unanimously rejected the implementation of TSA 2012 (Act 750), citing its infringement on the state’s rights to explore resources and generate revenue within its maritime borders.
Menteri Besar Datuk Seri Ahmad Samsuri Mokhtar said the state government’s opposition to the law was due to its non-compliance with the Federal Constitution’s conditions outlined in Article 2(b) and Article 38(4).
Constitutional expert Associate Professor Datuk Dr Wan Ahmad Fauzi Wan Husain said while the Act remained legally binding, its enforceability within a state hinges upon adherence to the constitutional processes outlined in Articles 2 and 38 of the Federal Constitution.
“Parliament cannot enact laws within a state’s jurisdiction, but it can establish such laws to ensure uniformity among states.
“Nevertheless, these laws must gain approval from the state legislature,” he told the New Straits Times today.
Wan Ahmad Fauzi also said that states could either adopt the measures implemented by the Kelantan state assembly or abstain from pursuing the required constitutional process under the Federal Constitution.
“I perceive no direct conflict regarding the enforceability of TSA 2012, but conflicts may arise in other federal laws, like the National Land Code, Mining Act, Continental Shelf Act and Petroleum Development Act, relating to state territorial water limits.
“However, affected states must contest the provisions of federal laws imposing such limits, besides safeguarding their rulers’ prerogative and constitutional rights,” he said.
He added that all parties must respect the rule of law and refer to the legal history of constitutional development before the Federation of Malaya was formed from reliable legal documents.
The National Professors Council’s (MPN) Governance, Law and Management Cluster head Professor Dr Nik Ahmad Kamal Nik Mahmood said all issues on territorial and international law fell under federal jurisdiction.
“States lack the authority over federal legislative matters. Terengganu’s dissatisfaction with a mere three nautical miles of fishing rights appears valid, yet the law was duly passed and legitimate.
“To challenge it, legal recourse through the courts is necessary. I concur with the Prime Minister’s Office view that only the court can invalidate legislation,” he said.
The Prime Minister’s Office (PMO) recently said the Act was valid nationwide, Terengganu included, and it was enacted to protect the country’s sovereignty and safety.
“Even though the Terengganu state assembly passed a resolution to reject it, it is still valid and in force throughout Malaysia, including in Terengganu, unless declared otherwise by the courts,” it said.
Constitutional expert Emeritus professor Datuk Dr Shad Saleem Faruqi concurred with this by saying that the recent rejection of the Terengganu assembly had no legal effect, as a law is presumed valid until declared otherwise by the courts.
“Federal-state conflicts over jurisdiction are not uncommon. The state (Terengganu) must seek a court declaration as the courts are the final arbiters.
“The government could also file a legal bid to seek a court declaration under Article 4(3) (Supreme Law of the Federation), 121(Judicial Power of the Federation) and 128 (Jurisdiction of Federal Court) of the Federal Constitution.
“The Federal Government can also request an advisory opinion from the Federal Court under Article 130 (Advisory Jurisdiction of Federal Court). These are the best solutions to address the dispute,” he said when contacted.
Shad Saleem said the Federal Government could also compel Terengganu to adhere to the TSA under Article 71(3), which grants Parliament the authority to enact measures in ensuring compliance.
“As a matter of last resort, the Federal Government can act under Article 150 to declare emergency in the state and force compliance,” he said, adding that the TSA 2012 is not just a domestic law, but it also has international implications.
Universiti Malaya Law Faculty dean Professor Dr Jason Chuah agreed with Shad Saleem’s statement, saying the matter should be brought to court to prevent the notion of the Act becoming a political assertion rather than legal action.
However, Chuah, who is an expert in maritime law, said the TSA 2012’s history and scope were indeed controversial and might invite constitutional challenges.
He highlighted an ongoing case brought by Sabah Action Body Advocating Rights (Sabar) against the Federal Government, which is seeking a judicial order to declare the Act unconstitutional.
“There is an arguable case that the TSA is inconsistent with their (Sabah and Sarawak) rights under the Constitution, whereby any variation in territories requires their consent.
“But as far as Terengganu is concerned, there is no clear statement of law from the state assembly on legal grounds for objecting to TSA 2012, other than press reports stating that the assembly is concerned over the state’s right to collect oil and gas royalties for the full 12 nautical miles of territorial sea.
“For sure, it is not guaranteed the same rights as Sabah and Sarawak under the law. The two latter states, it rather appears, are in a stronger position as a result of the Malaysia Agreement 1963.
“That said, the issues are best examined by a properly constituted court of law.”
He said under the United Nations Convention on the Law of the Sea, Malaysia is entitled to establish the breadth of its territorial seas up to a limit not exceeding 12 nautical miles.
He said this right is currently asserted by the Federal Government by means of the TSA 2012.
“Critically, Section 2 of the act limits the state waters, such as Terengganu’s, to no more than three nautical miles measured from the low-water line.
“This way of carving up the territorial sea is implicitly permitted because it is not a requirement of international law. The TSA 2012 has been passed in accordance with process and, on that basis, may be claimed as lawful.
“The Terengganu government will have to bring the matter to court if it claims that its constitutional rights have been infringed upon,” he added.
