Territorial Sea Act: September 20 ruling on bid
Published on: Thursday, September 12, 2024
By: Jo Ann Mool
The State Government is applying for an amicus curiae, despite not a party to the case, but is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case.
Kota Kinabalu: The High Court will on Sept 20 deliver its decision on the State Attorney-General’s application for leave to act as amicus curiae in the Sabah Action Body Advocating Rights’ (Sabar) action in challenging the Territorial Sea Act (TSA) 2012.
Judge Alexander Siew How Wai fixed the date Wednesday after hearing the application and submissions by all parties.
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Sabar filed the originating summons on Sept 2023, to dispute the validity of the Territorial Sea Act 2012 (TSA), which limits the State’s maritime boundary to only three nautical miles, naming the Government of the Federation of Malaysia as the sole defendant.
In Wednesday’s hearing, representing the prosecution from the State A-G chambers, counsel Mohd Saifurrazee Mohamed @ Hussin, informed that they acted for the State Government of Sabah for the proceedings, and submitted that the outcome of the present proceedings may affect the rights and direct interest of the State.
“This matter of concern causes the State Government to appear before Your Lordship to apply for leave to be an amicus curiae to Your Lordship and to share our perspective in this very important matter as well as other law which may directly or indirectly connected therewith,” said Saifurrazee and cited a decided case.
“Although the State Government through the Chief Minister has made a press statement about this issue confirming that the TSA 2012 is not recognised by the State of Sabah, our intention today nonetheless is to assist the court and refrain our self from siding any party as what any amicus curiae is all about.
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“We also believe that this application shall not cause any prejudice to any party in this proceedings. We humbly request for leave to be given to the State Attorney-General to appeal on behalf of the State of Sabah as amicus curiae,” submitted Saifurrazee.
The State Government is applying for an amicus curiae, despite not a party to the case, but is permitted to assist a court by offering information, expertise, or insight that has a bearing on the issues in the case.
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Counsel Roland Cheng, representing the plaintiff, asked the State Attorney-General to clarify their position on the plaintiff’s application concerning the Continental Shelf Act (CSA) 1966 and the Petroleum Mining Act 1966, as these two statutes are also mentioned in the plaintiff’s Originating Summons alongside the TSA 2012.
Saifurrazee replied: “As I have pointed out in my last submission, the particular law involved in this particular proceedings is not only limited to TSA 2012 but any other law directly or indirectly affected, because TSA 2012 and CSA also involve the Mining Ordinance and the Land Ordinance itself, so the effect of this proceedings might also affect those laws.”
Senior Federal Counsel (SFC) Nur Irmawatie Daud, representing the defendant, submitted that, as stated in their previous letter, they had objected to the State Attorney-General’s counsel’s application to participate as amicus curiae in the present case.
“What we have before the court today is a letter by the State Attorney-General’s counsel without a proper application for the parties and the court to evaluate the necessity of the State Attorney-General counsel’s application.
“What has been submitted earlier by the State Attorney-General’s counsel is merely a statement from the Bar.
“If the court allowed the application, we submit that it should be by way of a proper notice of application and not just merely by a letter,” added SFC Nur Irmawatie.
Saifurrazee replied that they did not file an application for amicus curiae by way of a Notice of Application because they are not party to the proceedings.
In response to a question from the court regarding the State’s position on whether it has the right to intervene in the present case, Saifurrazee replied that, at this juncture, their instructions were only to act as amicus curiae and that they had not received any instructions on whether to intervene or not.
“The ultimate aim for this application is to assist the court and at the same time to retain a good relationship between the State and Federal government,” added Saifurrazee.
Counsel Cheng submitted that their position was that the decided case cited by Saifurrazee did not apply because the State Government has that special position either to intervene or to act as amicus curiae when it comes to any matters involving the State.
“It is clear that the State Attorney-General is the chief legal officer of the State Government,” he said.
The decided case cited by the State Attorney-General did not involve any state government in any respect, so the decided case cited can be distinguished on that ground alone, said Cheng.
“The State Attorney-General is in a different position. They do not require consent from any party to intervene or to act as amicus. Of course, the plaintiff would like the State Attorney-General to be a party to the proceedings but as amicus that would also be acceptable to the plaintiff,” added Cheng.
The plaintiff is seeking 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;
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;
A declaration that the Mining Ordinance 1960 is valid in Sabah after June 19, 2012;
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;
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.
Together with SFC Nur Irmawatie were Federal Counsel Fazriel Fardiansyah Abdul Kadir and SFC Jesseca Daimis, while together with Saifurrazee was State counsel Devina Teo.
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