Grey areas in constitution behind Sabah's IC woes

Former PBS supreme council senior Dr Chong Eng Leong has discovered that grey areas which arose in the constitution following Singapore's departure from the Federation of Malaysia are the most important reasons why many Sabahans are not Malaysians.

Chong resigned from the party after it was re-admitted into Barisan Nasional and took a softer line on the issue of identification cards and illegal immigrants.

"Sabah and Sarawak are no longer equal partners with Malaya in the Malaysian Federation," explained Chong who despite a busy medical practice has been researching material with legal help to support the cases of Sabahans who are not Malaysians.

"The change in status came after Singapore left the federation in1965. Singapore’s departure has had far-reaching implications for Sabah and Sarawak and this is reflected in all the trouble that people have in the two states when acquiring Malaysian personal documents by operation of law."

'Interpretation of the word federation'

For starters, the interpretation of the word 'federation', according to Chong, is at the root of the problem when the National Registration Department (NRD) deals with applications from Malaysian Borneo under Article 14, relating to citizenship under operation of law.

"There is no interpretation of Malaysia Day – important to establish citizenship – but just a footnote on Sept 16, 1963," he said.

Article 160 of the Federal Constitution, as pointed out by Chong, has the following interpretation of 'Merdeka Day', 'state', 'federation' and 'citizen':

'Merdeka Day' means Aug 31, 1957, 'state' means a state of the federation and 'citizen' means a citizen of the federation.

In short, Chong added, the federation means the federation established under the Federation of Malaya Agreement 1957.

Chong's research shows that this is a departure from Section 4 of the Malaysia Act 1963, which has now been removed from Article 1 of the Federal Constitution of Malaysia:

1) The federation shall be known, in Malay and in English, by the name Malaysia;

2) The states of the federation shall be:

(a) the states of Malaya, namely, Johor, ...; and
(b) the Borneo states, namely, Sabah and Sarawak; and
(c) the state of Singapore.

3) ...

However, after Singapore's departure from the Federation of Malaysia in 1965, items 2(b) and 2(c) were removed and Sabah and Sarawak were included in 2(a), now known as only Item 2, along with the other states in the Peninsula while the words ‘states of Malaya’ were removed.

The inclusion does not however alter the fact that the legal history of the Borneo states has been different from that in the peninsula. While there is a provision in the federal constitution for people born outside the peninsula, there is no such provision, as it stands now following Singapore's departure, for persons born outside Sabah and Sarawak before Malaysia Day and whose either parent was a citizen of the United Kingdom and colonies and was born (the parent) in Sabah and Sarawak

"Under Article 14 (1) (a) read together with Part 1 of the second schedule to the Federal Constitution, 'the federation' does not include Sabah and Sarawak as interpreted in Article 160," said Chong.

"Although 'the federation' is clarified to include Sabah and Sarawak in Part 11 section 1 (b) of the second schedule, it is not comprehensive as in the case of peninsula Malaysia and is inconsistent when read with other provisions of the Federal Constitution."

A case in point

Chong said senior citizen Yong Lee Hua @ Piang Lin, 78, who was asked to apply for citizenship under Article 15 (1)(b) of the federal constitution – citizen by registration – is a case in point.

"Why was she given her citizenship in three minutes after the media entered the picture? Because it's her right under Article 14 (1)(a), by operation of law, not a privilege. That's why she's suing the NRD and the federal government."

Yong filed a suit against the state NRD and the government of Malaysia at the Kota Kinabalu High Court on Nov 3. She was assisted by Chong.

Yong was given the run around by the state NRD after she lost her MyKad to a pickpocket on Feb 12 last year. She was given the MyPR in replacement.

Her writ of summons and statement of claim reflects the particulars that the state NRD, at that time, told her in all seriousness that senior citizens who lose their MyKad are given a MyPR instead in replacement.

Subsequently, she was advised by the state NRD to 'apply' for her citizenship which she did on July 2 last year.

Her MyKad was returned to her on Oct 10 this year after she went public with her dilemma and Home Minister Syed Hamid Albar took an interest in her case and replaced the state NRD director with a local-born in line with Borneonisation, a key plank in the 20-points agreement under which Sabah and Sarawak entered into an enlarged federation on Sept 16, 1963 along with Singapore and Malaya.

The Malaysia Agreement categorically states: "Persons born in North Borneo (Sabah) or naturalised, or registered as born in Sabah as citizens of the United Kingdom and colonies who are ordinarily residents in Sabah, Sarawak, Brunei, Singapore on Malaysia Day will become citizens of Malaysia by operation of law."

"Persons over 18 ordinarily resident in Sabah on Malaysia Day, who do not become citizens by operation of law will be entitled to be registered as citizens, subject to certain conditions, if they have resided before or after Malaysia Day for a period amounting to seven out of 10 years. After Malaysia Day, persons born in Sabah will be citizens of Malaysia or permanent residents."