Isu Kerakyatan Sabah: Melanggar Perlembagaan Persekutuan?

Spinning a tall tale on Sabah

Joe Fernandez

February 17, 2013

Dr Mahathir Mohamad's so-called directive on citizenships is another red herring meant to divert attention from the tainted electoral rolls in Sabah.

We have heard it all now on Sabah from former prime minister Dr Mahathir Mohamad.

In his latest take on the on-going Royal Commission of Inquiry (RCI) in the state, Mahathir claims that he instructed that only those eligible in Sabah should be granted citizenship.

Citizenships are not based on any so-called directive from the prime minister, the home minister or the federal cabinet.

Citizenship is based on the Federal Constitution, the only social contract between the state and the people.

So, Mahathir could not have issued such a directive on the granting of citizenships. There was no need for one since there was no basis.

His so-called directive on citizenships is another red herring meant to divert attention from the tainted electoral rolls in Sabah.

The issue (child) of a citizen by operation of law – that is, the latter holding no citizenship papers – or the issue of a citizen by registration – that is, the latter with citizenship papers – is eligible to be citizen by operation of law whether born in the country or abroad. Those born abroad must have had their births registered at the nearest Malaysian High Commission or Embassy, or at the British or a Commonwealth mission, where’s there’s no such representation.

The Federal Constitution is clear on this point.

The government of Malaysia has no prerogative and discretionary powers on citizenship under the Federal Constitution except the federal cabinet when it comes to resolving the citizenship woes of Malaysians.

The federal cabinet can act in this case.

Many of those eligible to be citizens by operation of law in Malaysia are stateless because they carry no birth certificates like their parents, grandparents and ancestors. These include Indians and the Orang Asal (Orang Asli) in Peninsular Malaysia and the Orang Asal –Dusuns, Muruts, and Dayaks – in Sabah and Sarawak. The sea gypsies or Bajau Laut – Pala’u – in Sabah are also stateless.

The issue of a citizen by naturalisation – that is, the latter a foreigner who obtained citizenship in Malaysia – is eligible for citizenship by registration. If born overseas, there are the other requirements to be met.

Permanently doomed

Failure to register as a citizen or failure to register the birth if born overseas would mean that the issue would be considered a citizen of the naturalised citizen’s old country.

There are many in Malaysia in this category as a result of being born in Brunei, Indonesia (Kalimantan) and India, among other places. They are permanently doomed to carry red (permanent residence) and green cards (temporary residence) or even Special Passes (white) from the Immigration Department.

Citizenship by naturalisation is a long process which begins with entry permit and work permits. However, foreign spouses of Malaysians need only to get a social visit pass in lieu of entry permit. The catch is one cannot apply for a work permit on a social visit pass.

The next step for the foreigner would be to acquire temporary residence –green card – followed by permanent residence, that is, red card.

Given the required numbers of years in residence in Malaysia, and police clearance from the old country and the Malaysian police, a foreigner can apply for citizenship by naturalisation.

By right it should be a hassle-free process but the truth here is stranger than the fiction. Anything can happen at this juncture from long delays to an ominous silence from the authorities concerned.

It would be interesting to know on what basis and by what authority citizenships were issued to foreigners in Sabah. Mahathir had previously acknowledged that he gave out 200,000 citizenships in Sabah to those “who had stayed there for a very long time, spoke Malay unlike the Chinese, etc”.

Mahathir also denied even permanent residence in Sabah to some 300 deserving foreign professionals serving in the state, many for even up to 30 years. The Sabah government recommended them for permanent residence in Sabah and Malaysia.

The matter was only resolved when Chong Kah Kiat, as chief minister, personally called upon Mahathir at his office in Putrajaya and brought up the matter. It transpired that the little Napoleons in Putrajaya had been routinely consigning such applications from Sabah to the wastepaper basket.

The fact that the professionals concerned were non-Muslims may have had something to do with their long wait.

Back to square one

Putrajaya has no business whatsoever, under the constitutional documents on Malaysia, to block recommendations from the Sabah or Sarawak government on permanent residence in their respective territories.

It’s back to square one today in Sabah and perhaps in Sarawak, too.

Yet we are told by Mahathir that he liberally gave out citizenships in Sabah during his 22 years in office as prime minister.

Being in Malaysia a very long time and speaking Malay are not by themselves sufficient qualifications to be granted citizenship in the country. One must go through the proper procedures and process as set down in the Federal Constitution.

In Sabah and Sarawak, there are added criteria under the Malaysia Agreement. The governments of these two states must be the initiating and recommending body for foreigners in their territory who apply for citizenship.

The federal government cannot take it upon itself to issue citizenships to foreigners in Sabah and Sarawak.

Anyone who holds citizenship in Malaysia in violation of the Federal Constitution holds no citizenship at all. It’s a nullity in law from the very beginning.

The same fate applies to those who obtained citizenship by furnishing false and misleading information with or without the knowledge of the authorities concerned.

The revelations at the RCI tell of foreign-born applicants obtaining Malaysian personal documents merely on the strength of statutory declarations wherein they claimed birth in Sabah.

The crux of the story in Sabah, and one for the RCI to determine, is the extent to which the electoral rolls in the state has been tainted by those ineligible to be there.

That’s not the end of the story.

We have also heard at the RCI that duplicate MyKads of Malaysians had been issued by the National Registration Department (NRD) to foreigners for the purposes of voting.

These foreigners apparently voted on behalf of Malaysians who had registered as voters but seldom turned up on polling day.

Other Malaysians who were eligible to register as voters didn’t bother to do so. This provided another great loophole to nefarious elements who did not hesitate to issue duplicate MyKads to foreigners to enable them to register as voters on behalf of Malaysians.

Mahathir has been silent on these allegations which emerged during revelations at the RCI.

Instead, he keeps harping on what his directives were on the issuance of citizenships in Sabah and claimed that “other people including Opposition Leader Anwar Ibrahim may have gone off at a tangent in Sabah” and obviously “unknown to him”