The special committee formed by the Sabah state government to vet the native certificate held by DAP Sri Tanjung state assemblyperson Jimmy Wong is ultra vires section 3(3) of the Interpretation (definition of native) ordinance chapter 64.

This is the expert opinion of the legal committee of the quarter century Borneo Heritage Foundation (BHF) in Kota Kinabalu. The BHF, an NGO, was known as the Koisaan Development Institute for most of its existence.

NONE "Only the TYT (governor) can constitute a board of officers to look into the review and scrutiny of the SAN (Sijil Anak Negeri or native certificate)," said BHF chairperson Jeffrey Kitingan last night following the penultimate meeting of the NGO for this year. "Our legal experts are unanimous on this."

The "interests of the natives of Sabah are under the protection of the governor as provided for under Article 41 of the Sabah state constitution," he added.

Jeffrey was announcing the findings of the legal committee on several Borneo heritage issues referred to it by the trustees of BHF and its weekly ad hoc forums.

'Dead man tell no tales'

The BHF chair, elaborating on the legal opinion, stressed that a board constituted by the governor would be able to vet all native certificates referred to it.

This would mean probing whether a native certificate was genuine or fake, determine whether the holder of a native certificate was eligible, review supporting documents used to apply for a native certificate and review rejections for the native certificate.

It was not immediately clear whether such a board would or should have the power to recommend punitive action in certain cases.

"We can't have a committee, special or otherwise, probing just one native certificate and holder," explained Jeffrey.

"They would probably find that Jimmy Wong's native certificate genuine and stop there. What then? They wouldn't be in a position to go beyond that like in the case of a review board."

The special committee, it was noted, does not have subpoena powers which means no one can be forced to turn up before it and give evidence.

Also, the native chief who recommended Wong's native certificate has long since passed away and "dead men tell no tales".

Reference was also made by the legal committee to the case of Syed Kechik Syed Mohamed from Kedah vs the government of Malaysia and others. The Federal Court ruled in Civil Appeal No: 144 of 1977 that Syed Kechik was entitled to his native certificate and it was unlawful to strip him of it.

Syed Kechik was once political secretary to former Sabah chief minister Mustapha Harun and the first director of the timber-rich Sabah Foundation (Safond).

Jeffrey, also a former Safond director, wonders why Barisan Nasional members of the state assembly bothered to waste their time "entertaining themselves on public time" on Wong's native certificate when "they haven't got the slightest clue on the issue."

Jeffrey hopes that the special committee headed by the permanent secretary in the state ministry of local government and housing, Abidin Madingkir, would get the advice of the state attorney-general before commencing work on its single certificate probe.

The special committee was announced by state local government and housing minister Hajiji Noor after questions arose in the recent state assembly sitting over Wong's native certificate.

He noted that district native chief OKK William Mojimbon had already rendered the special committee academic by informing the media last week that Wong's native certificate "appeared genuine". Mojimbon also told the local media that he had already conveyed his opinion on the matter in writing to native affairs director Awang Seharin.

Mojimbon did not disclose the contents of his letter but it was learnt that he qualified his take by stressing that "more time was needed to verify Wong's native certificate."

In a related issue, the BHF endorsed Upko (United PasokMomogun KadazanDusunMurut Organisation) Bernard Dompok's take on the issuance of the native certificate.

Dompok, upon legal advice, told the local media that the state government had no right to stop its issuance on whatever grounds. He stressed that the native court, being part of the judiciary, is not bound by an executive ruling which infringes the domain of the former.

"We have been advised that all it takes is a test case to render null and void the freeze by the state local government and housing ministry," said Jeffrey. "There is also the related issue of illegal immigrants who obtain MyKads, become instant natives and pad the electoral rolls. This has been proven in court by the successful Likas elections petition case."

'Affront to the dignity'

The BHF chair acknowledged that the state government is issuing verification letters on a case by case basis to applicants eligible for native rights.

But this isn't good enough, according to him, "since it's an affront to the dignity of the native court and the natives who have been around 100 years before the advent of established government."

Examples of applicants eligible for the verification letter include the Inkas (Indo-Kadazans (urban Dusuns) which also covers other Dusuns, Sino-Dusuns including Kadazans, among others.

The penultimate meeting of the BHF also urged the state attorney-general and the Sabah Law Association (SLA) to speed up their work on reviews to the long-delayed native family law. The NGO cautioned both parties against repeating the mistake in the first draft which resorted to syariah terminology instead of using native terms.

"Although many natives are Muslims, we must keep the native laws in their historical perspective," said Jeffrey. "Syariah terminology in native laws is unacceptable."

The penultimate meeting resolved that the BHF legal committee should work immediately on gathering and compiling appropriate terminology in standard Kadazandusun for use in native laws which would be drafted in the English language, the language of the courts in Sabah and Sarawak.

Standard Kadazandusun is based on the Bundu-Liwan dialects and is presently used in government schools up to the PMR (Penilaian Menengah Rendah) level or the ninth year of formal schooling.