NOVEMBER 26 — The Federal Constitution is supreme, not Parliament. The Constitution lays down the legislative authority of Parliament and State Legislature.

The Federal Court in Ah Thian v Government of Malaysia [1976] 2 MLJ 112 had put it in no uncertain terms that the "doctrine of the supremacy of Parliament does not apply in Malaysia. Here we have a written constitution. The power of Parliament and of state legislatures in Malaysia is limited by the Constitution, and they cannot make any laws they please.”

Article 74(1) allows Parliament to make laws with respect to any of the matters enumerated in the Federal List or the Concurrent List –– that is, List I or List III set out in the Ninth Schedule.

Article 74(2), on the other hand, allows the State Legislature to make laws with respect to any of the matters enumerated in the State List –– that is, List II set out in the Ninth Schedule –– or the Concurrent List (List III).

Item 2(c) of the State List provides the State Legislature authority over land. Such legislative authority includes the issuance of prospecting licences, mining leases and certificates.

Does the authority include the right to regulate petroleum mining or development of oil fields on land in the state?

Item 2(c) of the State List only enumerates "permits and licences for prospecting for mines; mining leases and certificates” and does not include permits and licences for "oils and oilfields; purchase, sale, import and export of minerals and mineral ores; petroleum products; regulation of labour and safety in mines and oilfields”.

The matters in parentheses are matters in Item 8(j) of the Federal List. For good measure, Item 8(j) is set out in full below:

"(j) subject to item 2(c) in the State List: Development of mineral resources; mines, mining, minerals and mineral ores; oils and oilfields; purchase, sale, import and export of minerals and mineral ores; petroleum products; regulation of labour and safety in mines and oilfields;”

There are more matters in Item 8(j) than in Item 2(c). The latter is restricted to mines, mining licenses and certificates.

Now, the Petroleum Mining Act 1966, among others, has become an issue lately. The Act is to make provision with regard to mining for petroleum and for matters connected therewith. (Emphasis added)

It is arguably an Act within the legislative authority of Parliament to pass.

When Section 3 of the Act (on restrictions on petroleum exploring, prospecting and mining) provides in subsection (1) that no "person shall explore, prospect or mine for, or do any act with a view to exploring, prospecting or mining for, petroleum upon any land except by virtue of an exploration licence or a petroleum agreement”, it does not encroach the legislative authority of the State Legislatures.

I stand corrected.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.