THE federal government has tried to restructure the water sector three times and this process requires amendment to the Federal Constitution. The first two attempts were met with failures and the third attempt was successful as the federal government did not include executive power for water resources for Peninsular Malaysia and Federal Territory of Labuan, while Sabah and Sarawak did not participate in this exercise.
The Federal Constitution was amended via bill DR 30/2004 to place power for water supply and water treatment of Peninsular Malaysia and Federal Territory of Labuan under Concurrent List to give executive power to the federal government to manage and regulate both aspects. It is clear that executive power for water supply and treatment for Peninsular Malaysia and Federal Territory Labuan is under the federal government and jurisdiction on water resource remains under state governments. As for Sabah and Sarawak, the water treatment, supply and water resource continue to remain under state government jurisdiction.
A few weeks ago, we read again suggestion by the Penang state government that an authority comprising states that are using Sungai Muda as a water resource must be formed to govern the catchment and the river basin. Based on this explanation, we can see that all states including Penang were not in favour of surrendering power on water resources during the Federal Constitution amendment.
There were also attempts by federal government agencies few years ago in trying to amend the Federal Constitution to remove state governments’ power on water resources but it did not proceed.
In a national level survey conducted by the Association of Water and Energy Research Malaysia (Awer) (using the Statistics Department’s sampling methodology), 72.86% of Malaysians supported Awer’s suggestion to remove state governments’ power to water resources and place it directly under “Parliament” if state governments fail to protect water catchment areas. This shows that Malaysians will definitely support the move to prevent water crisis and higher tariff which are directly associated with failure in protecting water catchment areas. The difference here is that the power is placed on Parliament where the agency must report to and every Member of Parliament will be held responsible. It is not an agency that only reports to a minister.
We are also aware that the Penang state government is collecting raw water tariff from state’s water company (PBAPP). When Kedah requests raw water tariff payment, Penang quoted riparian rights. Similarly, Penang cannot stop Kedah from logging or development surrounding Ulu Muda catchment area as land-use is within state’s jurisdiction. When both parties fail to see basic issues that can be resolved, this impasse will not end soon. It may need future leaders that see facts compared to emotions. Penang and Kedah’s arguments on their respective rights are placed in State List Item 6(c) of Federal Constitution’s Ninth Schedule.
Let’s estimate what Penang collects from the raw water used in the state. If the raw water charges is about 6 sen per cubic metre and according to reports, Penang draws 1100 million liters per day (MLD) from Sg Muda. Thus, Penang collects close to RM24.09 million a year from this raw water charges and Kedah is demanding RM50 million a year as raw water charges. Kedah’s demand is close to 12.45 sen per cubic metre. This is a glaring mismatch between both states.
Based on Federal List Item 11(b) of Federal Constitution’s Ninth Schedule, rights are also given to the federal government for rivers that flow through more than a state. This right is excluded if there is an agreement between the states involved with regard to the said river. Thus, Kedah and Penang (Alteration of Boundary) Act 1985 and any other agreement(s) related to Sungai Muda raw water abstraction must be studied in detail. If the federal government steps in using Federal List Item 11(b), the decision will set precedence to all rivers that cross states in Malaysia. This decision may be challenged by other states if it is not in their benefit.
Under Part III of the Federal Constitution’s Tenth Schedule, state governments can also receive revenue from raw water based on Item 8. Thus, Kedah has the right to charge Penang for raw water. Therefore, the best way to resolve this impasse, both state governments must get clarifications over their demand through a court process if they fail to negotiate and come to a consensus over the raw water charges.
“Life and death are one thread, the same line viewed from different sides.” – Lao Tzu
This article is contributed by Awer president Piarapakaran S. The views in this article are the writer’s own.
