THE recent newspaper report on 10.01.2023 that the Sabah State Legislative Assembly had passed the Gas Supply Enactment 2023 is good news after 15th General Election (“GE15”).
It is even more surprising at the speed in which this enactment was passed given that the Federal Government only on 03.01.2023 was reportedly contemplating to give autonomy on gas supply to Sabah.
How did Sabah lose this gas autonomy? The answer presumes that Sabah had this power before forming Malaysia on 16.09.1963. So why was this power taken away by the Federal Government? For this, we have to look at List 1 – Federal List, Ninth Schedule Article 74 Federal Constitution (“FC”) which states that the federal powers includes in Item 11(c) for “...Electricity; gas and gas works; and other works for the production and distribution of power and energy...”.
Article 74(1) FC allows the Parliament to “...make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List...”. In this respect Section 2(3) of the Borneo States (Legislative Powers) Order 1963 [L.N. 17/1963] (“BSO 1963”) passed on 04.12.1963 is relevant for the “...State Legislature has power only for a period to pass laws with respect to any matter, the expiration of that period shall not affect the continued operation of any State law passed in the exercise of that power, save as provided by federal or State law...”.
Therefore, the answer is that the State power to make laws regarding electricity and gas was agreed during the formation of Malaysia to be a federal matter under the Federal List.
When did Sabah lose this gas autonomy? On 23.12.1983, based on the power granted to the Yang Di-Pertuan Agong under Article 95c of the FC, Parliament passed the Borneo States (Legislative Powers) (Revocation) Order 1983 where Section 2 stated that “...The extension of the legislative powers of the State of Sabah made by the Borneo States (Legislative Powers) Order 1963, in so far as it empowers the Legislature of the State of Sabah to pass laws with respect to the matters of electricity, and the distribution of gas, is hereby revoked...”.
The exact reasons for this revocation of powers in 1983 is unclear but the effect was that Sabah lost the gas and electricity autonomy.
How did Sabah regain this gas autonomy? On 03.01.2023, with the power granted to the Yang Di-Pertuan Agong by the Article 95c of FC, Parliament after GE15 passed the Borneo States (Legislative Powers) (Amendment) Order 2023 which amended BSO 1963 by inserting “...6. The distribution of gas...” to the Schedule in Part I. The Sabah State Legislative Assembly followed up with their own Gas Supply Enactment 2023 on 10.01.2023. So, Sabah regained its gas autonomy.
Can Sabah lose this gas autonomy powers again? Unfortunately, the answer is yes because the gas autonomy can be easily revoked again.
What is the solution? We definitely have to consider to amend Article 95c FC to exclude the power of Parliament to pass laws affecting the Borneo States on Autonomy Powers without the sanction of the Sabah’s State Legislative Assembly and the Yang Di-Pertua Negeri Sabah under Article 161E on Safeguards for constitutional position of States of Sabah and Sarawak. This will also apply to other areas such as gaming laws and shipping laws. If the FC is amended, this will put the Sabah Autonomy Power on a firm footing and not be subject to administrative orders to revoke such autonomy powers. However, that is a political issue.
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