BREAKING NEWS . . . Politics of Islam in Malaya isn’t for Sabah, S’wak . . .

Islamic State, tanah Melayu Narrative, misnomers based on ‘collective amnesia’ in Malaya.

Malaysia secular nation-state founded on rule of law.

It was a shockwave statement by a Deputy Minister in Putrajaya in recent days on pending law about the propagation of religion in Malaysia. It came like a bolt from the blue and set the social media ablaze in Sabah, and Sarawak, in particular.

The proposed law involves the syariah court which can’t interfere in non-Muslim affairs, civil matters and criminal law. The Attorney General, under Article 145(3), has no jurisdiction in the syariah court, Native Court and court martial proceedings.

The politics of religion in Malaya isn’t for Sabah and S’wak, on the other side of the South China Sea in Borneo.

There’s no religion in the Borneo Territories under the Malaysia Agreement 1963 (MA63) and constitutional documents on Malaysia including Batu Sumpah (Oath Stone), a constitutional document in stone in Keningau, Sabah. These, read together with the Federal Constitution, forms the unwritten/uncodified Malaysia Constitution for the Borneo Territories.

Borneo not in Federation . . .

Unlike the sultanates and former British settlements in Malaya, Sabah and S’wak are not in the Federation defined in Article 160(2) in the Federal Constitution. The Borneo Territories are organised but unincorporated in the Federation and control their own Immigration although the Dept remains Federal. Article 160(2) interprets and Defines all terms in the Constitution.

It’s unclear, given so much noise in gov’t and the media, on whether non-Muslim in M’sia would be prohibited by law from propagating their religion among the people, no matter what their creed, or only among Muslim, on whether Muslim are prohibited from propagating non-Muslim religions, or whether non-Muslim are prohibited from any form of propagation.

Law ceases to exist, as if there’s no law, and if it exists, ceases to exist as if it never existed, if it’s not gazetted, there’s no enforcement date in the gazette, isn’t enforced, cannot be enforced, is widely flouted, is bad law, or is inferior law null and void to the extent of its inconsistency with superior law i.e. the Federal Constitution. Article 11 (Freedom of Religion) Article 3 (Religion of the Federation) and Article 12 (Rights in Respect of Education) refer in this case.

Gazette isn’t law . . .

A gazette isn’t law but merely a gov’t announcement. It can’t be challenged in the court of law. The court of law is only about law.

However, the process of gazetting can be challenged by judicial review since it may be in violation of the gov’t’s own procedures, existing laws and the spirit of the law inherent in the Constitution.

Generally, unlike in England, the court in M’sia does not go into the merits of judicial review Applications. The court first considers whether the gov’t has complied with its own procedures. If there was compliance, the judicial review Application would be dismissed. The merits of the Application are not considered. Thereby, the court allegedly avoids the spirit of the law.

Again, unlike in England, the court in allegedly avoiding the spirit of the law, does not consider whether gov’t procedures are unfair. It’s rare that the gov’t loses judicial reviews. Parliament has been virtually looking the other way on this phenomenon in the judiciary which appears to have degenerated into another gov’t dept, like Parliament, in violation of the Doctrine of Separation of Powers.

Origin of Syariah court . . .

The syariah court, as state court in the sultanates, are based on a little known amendment in the Federal Constitution under Article 76A. The amendment, without mentioning syariah or syariah court, facilitates the state assembly to empower the syariah court. It’s not a court of law but Tribunal, on personal and family matters and religious observances of Muslim. The Article makes no mention that the sultan is the spiritual head of the local ummah (faithful).

Conference of Rulers . . .

It can be argued that the sultan, being the spiritual head of the local ummah, should preside over the syariah court. It’s not known whether the pre-Council Meeting of the sultans, which precedes the Conference of Rulers by 24 hours, ever deliberated on the matter during all its years in existence. Article 38 covers the Conference of Rulers. After the British left, the sultan also became head of state as the Governors in the non-sultanates.

The British re-established the 1897 Conference of Rulers on 31 Aug 1948 to help regulate the mostly immigrant Muslim communities in Malaya. The Negrito, the first people in Malaya, came 40K years ago from the mountains in Kerala, southwest India. Negrito are one of the Orang Asli (indigenous) groups.

In India, a necessary digression for this Opinion piece, the law forbids missionary groups — read Christian — converting anyone away from their religion. However, the Constitution still enshrines freedom of conscience. Everyone is free to practise their religion or move, but only on their own accord, to another religion. In short, there must be no compulsion, directly or indirectly.

State law . . .

State law in India since Wed 25 Nov 2020 also prohibits conversion to another religion — read Islam — to marry but inter-faith marriages are allowed provided there’s no conversion, presumably to Islam and Christianity, allegedly perceived as “threats” in a 85 per cent Hindu majority India. The Church doesn’t demand that non-Christian convert to Christianity before marrying Christian.

There’s lacuna (gap) in M’sia on freedom of conscience. The Indian law, being from the Commonwealth, provides Advisory Opinion in court for M’sia. It has all the principles in law in accordance with the Constitution.

There’s also lacuna on syariah in M’sia.

The Indian Supreme Court, in refusing to outlaw syariah on Mon 7 July 2014, ruled that syariah was not law or force of law but based on a person’s willingness to accept it. It would be unconstitutional, cautioned the court, to impose syariah on anyone.

The Indian Parliament, taking its cue from a Petition filed in 2017 by Muslim women in the Supreme Court, outlawed triple talak instant divorces in Islam on Tues 30 July 2019. Earlier, the Supreme Court warned that the “Muslim” headcover, used to enforce triple talak, cannot be forced on anyone.

Islam based on concept of sin . . .

Islam isn’t law but based on the concept of sin (dosa) and merit (pahala). That apparently necessitates the list of dos and don’ts . . . halal (permitted), haram (prohibited) and harus (neither permitted nor prohibited).

Under the rule of law, sin isn’t prohibited in secular nation-states unless it can be criminalised by law, pahala remains confined to “duty of care” which does not apply by law to everyone. For example, a lifeguard on duty at the beach or swimming pool has “duty of care” to prevent anyone drowning.

Islam was created by the 3rd Caliph Uthman, as a form of identity for Arab, when according to history he codified the Quran from 600K sacred Christian texts in the Aramaic language and from other sources.

Mohd, based on multiple characters, was mentioned in the Quran according to Arab and Islamic history, since it was felt that a religion must have a Prophet. The exploits of many characters, according to Arab and Islamic history, find expression in Mohd as a great law giver like Moses, for example.

Ten Commandments . . .

Moses or no Moses, the Ten Commandments unlike syariah have force of law, being based on customary practices.

Moses claimed, according to tradition, that God spoke to him from behind a burning bush. Moses came down from the mountain with two stone tablets with the Ten Commandments. He claimed that God gave the two tablets to him. Moses, in a fit of rage according to tradition, broke the tablets which were placed, broken, in the Ark of the Convenant.

A religion, being based on a belief system, may be about the differentiated consciousness, trapped in space and time in the gross human body, seeking certainties in the comfort zone.

Consider the following self-evident truths in law and history:

Islamic State, tanah Melayu Narrative, misnomers based on ‘collective amnesia’ in Malaya . . .

Malaysia secular nation-state founded on rule of law . . .

The above two thesis statements, self-explanatory, make up the headline and subheadline in this Opinion piece. They can be explained further.

Gov’t reserves . . .

The British gazetted gov’t reserves on Orang Asli (indigenous people in Malaya) land. These were referred to as Malay reservation land (tanah Melayu). Gov’t reserves are untitled land. Such land can be degazetted for public purposes or returned to the Orang Asli.

Unlike the Orang Asal (original people, indigenous) in the Borneo Territories, i.e. Sabah and S’wak, and the Orang Asli in Malaya, Malay don’t have NCR (native customary rights) land under Adat, viz. customary practices which have force of law.

Adat is the 1st Law in International Law, based on international customary practices. It’s about human rights.

Briefly, an Islamic State is one where the Quran is the Constitution and God the head of state. God would be represented by a spiritual head advising the gov’t as in Iran, for example.

The syariah (path of God), hadiths (sayings of Prophet Mohd), fatwa (religious opinion), and Sirat (Mohd’s biography) form the foundation of Islamic jurisprudence and legal system.

An Islamic State is the “antithesis” of the rule of law, the basis of a secular Constitution as in Malaysia. According to jurisprudence, God isn’t a source in law. Law and force of law must have source to have jurisdiction, authority and power.

Legitimacy . . .

The rule of law calls for freedom of conscience; free speech, free assembly, free association; free press and the right of reply; respect for human rights and international law; free and fair multiparty elections observed by the international community, consent of the governed, legitimacy of gov’t, and recognition of a gov’t by the UN and member states, both on a bilateral and multilateral basis.

All these criteria are missing in Afghanistan, for example, where the Taliban seized the gov’t in Kabul by force on Sun 15 Aug under the guise of an Islamic Emirate. The Taliban failed to participate in multiparty elections under its banner, having been outlawed by the UN as a terrorist movement. Google “criminal mindset” to understand the Taliban better as a threat to the global security framework.

Work in progress . . .

Islamic jurisprudence begs to disagree with secular jurisprudence.

In Islamic jurisprudence, God exists and has always existed and reportedly created Man. God, in Islamic jurisprudence, is the source in law. If Islam and syariah had claimed that they were based on customary practices, they would have force of law in secular jurisprudence. There may be a work in progress shift on this in Saudi Arabia to comply with secular jurisprudence.

Likewise, to digress a little, it’s said that Beijing has been working on adopting a new Constitution based on the rule of law.

Creation not science . . .

In science, it’s unscientific to say that God exists. There’s no proof. Again, in science, it’s equally unscientific to say that God does not exist. There’s no proof.

Secular jurisprudence, taking its cue from science and philosophy as well, holds that God could not have created Man as there was no need by the laws of science. Man, according to philosophy, created God through religion. Then, Man claims through religion without proof that God said this and said that and declared law for Man.

It’s science that the gross human body isn’t “us”.

The gross human body is something “we” inherited as two cells which went on to gather the energy of the sun through Mother Nature on Earth.

It will return to Mother Earth when its time runs out.

When the gross human body returns to Mother Earth, there’s no longer any differentiation in consciousness. We know from science which has probed the mind going into coma, that the consciousness exists as spirit which defies description.

There’s only the undifferentiated consciousness — i.e. it “sees’ everything according to subject matter experts — after the gross human body returns to Mother Earth.

Mind permeates whole body . . .

It’s science that the mind isn’t in the brain only but permeates the whole human body, powered by electricity like in the case of robots run by Artificial Intelligence. The mind, consciousness, and the universe are one and the same, according to spiritualists, mystics and yogis.

Memories and emotions cease to exist, unless stored by the universe, and played back like a video on the “other side”. That may be part of belief systems found in religion which promote the idea of judgment day.

Article 3, a standalone Clause in the Federal Constitution, states that Islam is the religion of the Federation. There’s no official — i.e. gov’t — or national (no other religion recognised) religion in Article 3. The Federal gov’t has no religion. Islam, the religion of the Federation under Article 3, is in fact the religion of the sultans in Malaya. In law, where it reads religion of the Federation, it can be read as religion of the sultans.

The sultans were recognised by the British as the spiritual head of the local ummah (faithful).

Definition of Malay . . .

They also preside over Malay culture, customs and traditions as enshrined in the 1st Prong of the Definition of Malay in Article 160(2) of the Federal Constitution.

The 1st Prong implies Malay as a race of Muslim, habitually speaking the Malay language, and practising Malay culture, customs and traditions. The 3rd Caliph Uthman said Islam was a form of identity for Arab. Therein lies the contradictions in law. Arab in history came before Malay.

In the 2nd Prong, “clarified” by case law, Malay is a form of identity based on Islam and being born or domiciled as Muslim and/or convert in S’pore or Malaya by Merdeka, 31 Aug 1957. The descendants are Malay provided they remain Muslim.

Today, according to linguists, when someone speaks the Malay language, five to seven words in a sentence of ten words are Sanskrit, the language used in Hindu temples in mantra, prayer, song, poetry, dance, worship, literature, ancient books of knowledge and philosophy.

The rest of the ten words in the sentence are an old Khmer dialect, Tamil, Pali, English, and words from local languages and dialects.

Lingua franca . . .

The Malay language wasn’t originated by any race, according to linguists, but by Hindu and Buddhist from southeast India, as lingua franca for the Archipelago. It was used for trade, missionary work, education and administration. The Malay language has only 20K words.

By 2050, it has been estimated by linguists, that Bahasa M’sia would probably comprise 50 per cent English, 30 per cent Sanskrit, 10 per cent Tamil and Pali, and 10 per cent old Khmer dialect and local languages and dialects. Bahasa M’sia, as it stands, has 40K words.

English is 50 per cent Latin, 30 per cent French, 10 per cent Greek, and 10 per cent Germanic dialects and other languages and dialects.

There’s case law in Malaya that the Definition of Malay in Article 160(2) isn’t race but anthropology. The Constitution is colour-blind, the law doesn’t get into DNA or geographical origin.

Palm Oil (Malaysia) Sdn Bhd v. Che Mariah Mohd Tahir (Trading as Delta Mec Enterprise) [1994] 3 CLJ 638 is case law on the Definition of Malay in Article 160(2).

Case law on Malay . . .

If it’s anthropology, Islam which came to the Archipelago from a place far away, from Gujerat in western India, would not be mentioned in the Definition.

Clearly, the said case law does not stand.

Anthropology in the Archipelago covers paganism and animism, an ancient form of Hinduism, and Buddhism, an Indic religion.

It cannot be said to cover the Abrahamic religions viz. Judaism, Christianity and Islam as well.

According to the 2010 National Census, Malay form 50.4 per cent of the population in Malaysia.

In the 2020 National Census, delayed by the pandemic, the Malay have been classified under the Bumiputera (sons of the soil) political label along with other Muslim including convert, Orang Asal (indigenous people in Borneo) and Orang Asli (indigenous people in Malaya).

Malay number unknown . . .

The Malay number in the population remains unknown. There’s no “ethnic” breakdown in the figures.

It’s said the National Registration Dept (NRD) has since dropped Malay from the chip on the national identity card, MyKad, but retains Islam on the front. This allows Muslim nationwide including allegedly illegal immigrants, who habitually speak the Malay language, to consider themselves Malay to feed public perception on the phenomenon. In that case, the Definition of Malay in Article 160(2) may be redundant in law and renders the tanah Melayu theory non-existent.

In law, there may be constitutional issues with the Malay Definition in the Constitution.

BREAKING NEWS . . . Agong ‘right’ even when ‘wrong’, letter of the law only isn’t law at all . . .

Agong ‘right’ even when ‘wrong’, letter of the law only isn’t law at all.

No court will go against Agong on his role in the Constitution.

Former Chief Justice Abdul Hamid Mohamad has taken issue, in a lengthy 11-page statement in Bahasa on Thurs 9 Sept in his Blog, on the Agong and brother sultans allegedly playing a role in politics in the past one year.

According to media reporting on the Blog statement, ex-CJ Hamid queried the need for the Agong to consult brother sultans on the Emergency declared early this year, the appointment of the Prime Minister, and the Istana’s decree that Prime Minister Ismail Sabri must face a confidence motion in Parliament when it reconvenes on Mon 13 Sept.

He also queried various statements issued by the Istana over the last year on the political situation in the country.

The bottomline, according to ex-CJ Hamid, is that the public may perceive that the Agong and brother sultans may be interferring, for want of a better term, in the political situation in the country.

That may be like saying that the judge is interferring on issues in conflict between parties in dispute. It’s a contradiction in terms when it’s the parties in dispute that approached the court and asked for its intervention on their issues in conflict to bring closure by ruling on their submissions for a resolution.

Out of court . . .

No judge in the world will interfere if parties in dispute subsequently agree to settle issues in conflict out of court.

The judge would merely record the out of court settlement so that the issues in conflict won’t flare up again between the parties in dispute.

We are of course talking about civil cases. In criminal cases, there are different considerations. It’s not necessary to go into them in this Opinion piece.

Earlier, on Mon 21 June this year in his Blog, ex-CJ Hamid issued a joint statement in Bahasa with senior law lecturer Shamrahayu Abdul Aziz.

The joint statement argues on the role of the Attorney General under Article 145(2). They implied, according to the media reporting, that the AG may not be able to defend the Agong if he does not accept advice and was taken to court. They raised the prospects of the Agong’s decisions being nullified by the court.

The matter does not arise. No court will go against the Agong in the performance of his role in the Constitution. The matter is non-justiciable.

The Agong is ‘right’ even when he’s ‘wrong’, the letter of the law only isn’t law at all.

Attorney General . . .

Article 145(2) reads . . . “It shall be the duty of the Attorney General to advise the Yang di-Pertuan Agong or the Cabinet or any Minister upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Yang di-Pertuan Agong or the Cabinet, and to discharge the functions conferred on him by or under this Constitution or any other written law.”

The joint statement also refers to the Agong obtaining information under Article 40(1) and the Role of the Conference of Rulers spelled out in Article 38, Third Schedule and Fifth Schedule of the Constitution.

Both statements did not touch on the AG publicly disagreeing with the Agong. If the AG privately disagrees with the Agong, it’s understandable. In that case, there’s no reason why the AG cannot defend the Agong in court, if push comes to shove.

If the AG publicly disagrees with the Agong, it has been argued by many in the legal fraternity, he should be sacked without much further ado.

Those who want to read the above statements in full can visit https://www.tunabdulhamid.my/

PART 2 . .

At this juncture, we need to remind ourselves that Opinion isn’t law. Only the court can declare law. Parliament makes laws. But only the court can interpret the intention of Parliament and the intention of the framers of the Constitution. The work of the court is to find the law and declare it. The lawyers look for the law and point it out to the court.

Law exists, and has always existed, based on common sense, universal values and the principles of natural justice.

Law must have source to have jurisdiction, authority and power.

The court is only about law. It’s not about ethics, moral values, theology, sin, God, justice or truth.

Before addressing the ex-CJ’s concerns further, we can bring Chief Justice Richard Malanjum into the picture.

Malanjum said in a farewell address, not so long ago, that “the letter of the law — i.e. written law — isn’t the sum total of the rule of law”. In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law read together with the letter of the law.

Dictatorship . . .

In short, the letter of the law by itself isn’t law at all. It’s dictatorship since there’s no democracy. The letter of the law by itself remains synonymous with rule BY law i.e. rule BY man.

Malanjum was raising his concerns on the legal fraternity, the court and the judiciary. He implied, in discreetly disclosing private comments by lawyers, that they were mistaken in focussing on the letter of the law as the be all and end all of law.

Clearly, based on the then CJ’s farewell address, we can be forgiven for concluding that the legal fraternity, the court and the judiciary may be weak on the spirit of the law.

Law, ultimately, remains the power of language on the nature of human relationships and how they are and/or can be regulated.

The complexity of the matter can be further explored based on what the University of London, for example, tells law students in the modules . . . “It’s not possible for anyone to know law” . . . “The LLB, being an academic programme, has nothing to do with court room work and legal skills. It can only be used in teaching.”

Legal education reforms . . .

The university further advised that it’s public perception, gov’t and the Bar which feels that lawyers admitted to the High Court must have the LLB before they can do the English Bar exams. In M’sia, the Certificate in Legal Practice (CLP), run by the Legal Profession Qualification Board (LPQB), is a programme equivalent to the English, Australian and S’pore Bar, among others.

England and Wales, among others, have since decided that they must cast the net wider to bring more talent into the legal profession which was once noted for brilliant lawyers. The LLB has been deemed no longer necessary to sit for the English Bar before admission to the High Court as advocate and solicitor.

Anyone with a non-law honours degree can go through a six months to 18 months law conversion course, and sit for the English Bar before admission to the High Court.

Advocates and Solicitors take different routes unless a lawyer wants to perform both roles.

M’sia needs reforms badly not only in the judiciary but also law education. The LPQB does not recognise law conversion courses.

Common Bar Examination . . .

At the same time, the M’sian gov’t has been sitting for years on the proposed Common Bar Examination. At present, law graduates do not have to sit for the CLP if they graduate from local public universities.

Article 8 says that in law there can be no discrimination. That was seen in the High Court decision on Thurs 9 Aug. M’sian mothers married to foreigners can now pass their citizenship status, by operation of law, to their children born overseas.

PART 3 . . .

In taking up the cudgels again on ex-CJ Hamid and the senior law lecturer, it’s interesting that they didn’t mention the Perak case law 2009.

It was this case law that affirmed that the sultans, being hereditary rulers, have “residual” — i. e. reserve — powers. They can determine “confidence” in a proposed head of gov’t by “other means”. Agong is sultan.

It has been argued by some in the legal fraternity that the sultans no longer have the “absolute” power they had before the British came. In that case, we need a Declaration on a point of law on the Perak case law 2009. The Federal Court sits as the constitutional court.

In fact, before the British came, the sultanates were not territorial states. They were riverine kingdoms confined to collecting toll at the mouths of the main waterways. The sultanates, after they became territorial states, were named after the main waterways.

The Perak case law 2009, as ruled by the Federal Court in the Tues 1 Sept 2020 majority decision on the Sabah Constitution, isn’t applicable to non-sultanates.

Thy kingdom come . . .

Of course, we can argue until the cows come home or thy kingdom come, that the Agong should decide on the appointment of the Prime Minister on his own i.e. not be seen publicly as consulting brother sultans or even the Raja Permaisuri.

If the people are unhappy that the Agong not only consulted with brother sultans, but the Istana even issued statements on the matter, the same exercise can be carried out discreetly. It makes no difference.

On Fri 20 Aug, when the Agong consulted brother sultans, the sultans of Johor, Kelantan and Perlis did not turn up at the Istana. That’s their prerogative.

However, no court will tell the Agong not to consult brother sultans on the appointment of the Prime Minister or the declaration of Emergency. It will not advise him on how he should play his role in the Constitution. He has prerogative and discretionary powers.

No court will interfere in the prerogative and discretionary powers of gov’t and management unless abuse can be proven. There’s case law by Judge Raja Azlan Shah on this matter. Raja Azlan went on to become Raja Muda (crown prince) and Sultan in Perak and finally Agong. Raja Nazrin, his son, is currently Deputy Agong.

Allegations of abuse . . .

Abuse is highly subjective. The court rarely and reluctantly, if at all, considers Applications on abuse. Such Applications may not meet the threshold. That means the merits of the case will not be heard.

Conventions, the working of the Constitution, are even more important than the latter document.

No court will hear Applications on conventions as they are not law. The court is only about law.

When Muhyiddin Yassin resigned as Prime Minister on Mon 16 Aug, the Agong could have appointed him Interim Prime Minister but instead he became Caretaker Prime Minister until Sat 21 Aug.

Agong could have pointed the politicians in the direction of Parliament House and closed the Istana gates.

Then, Parliament could have considered a confidence motion based on at least three or more candidates being nominated by a proposer and seconder for the post. If no candidate secures 51 per cent of the votes of those present and counted, a run-off could be held between the top two candidates.

Under Article 63(1) — “Privileges of Parliament” — “The validity of proceedings in either House of Parliament or any committee thereof shall not be questioned in any court.”

PART 4 . . .

Agong could have invited Opposition Leader Anwar Ibrahim, based on parliamentary conventions in the Commonwealth, to form the gov’t.

Instead, he invited all MPs to nominate a candidate, unconditionally, for Prime Minister. The Opposition could have declined to participate.

Speaker Azhar Harun, as decreed by the Istana, invited all lawmakers by email on Tues 17 Aug to nominate the Prime Minister-designate by letter faxed to the Istana by 4pm on Wed 18 Aug. He cited Article 43(2)(a) of the Federal Constitution.

Based on media reports, Anwar Ibrahim received 105 unconditional votes.

Gua Musang MP Tengku Razaleigh reportedly nominated himself. He was willing to support Anwar if the latter was chosen by the Agong as Prime Minister-designate.

Umno vice president Ismail Sabri received only 32 unconditional votes and 82 conditional votes. Total 114 votes.

The conditional votes were from Perikatan Nasional (PN) 50 votes, Gabungan Parti Sarawak (GPS) 18 votes and Umno “court cluster” 14 votes. Earlier, the “court cluster” reportedly had privately promised to support Anwar, probably conditionally.

It was the 14 votes of the Umno “court cluster” that brought down Muhyiddin Yassin on Mon 16 Aug, leaving him with 100 MPs in the 222-seat Parliament. Two seats, Batu Sapi in Sabah and Gerik in Perak, are vacant.

Opposition not interviewed . . .

Agong only interviewed, one by one, Ismail Sabri’s 114 nominations, unconditional and conditional, on Fri 20 Aug.

Agong appointed Ismail as Prime Minister on Sat 21 Aug at 2.30pm. Since Ismail Sabri had only 32 unconditional nominations, Agong decreed that he face a confidence motion when Parliament reconvenes on Mon 13 Sept.

It must be noted that from Mon 16 Aug to Sat 21 Aug, no lawmaker expressed objections on the Agong taking a leadership role in determining by “other means” who should be chosen as Prime Minister-designate. Therein lies the spirit of the law. The Perak case law 2009, which works only if all concerned participate, refers.

It’s needless to say that Opposition Leader Anwar Ibrahim remains very disappointed and deeply hurt that he was not chosen as Prime Minister-designate. If Agong had picked him, the 18 GPS nominations and another by Razaleigh would have shifted to him, probably conditionally in the GPS case.

If Ismail Sabri falls, as widely expected, the Opposition Leader will be in the running again for the PM’s post, sooner rather than later. A week, it’s said, is a long time in politics.

Hopefully, this time, the Agong will invite Anwar to form the gov’t instead of determining by “other means” who should be Prime Minister. It’s highly unlikely that the Opposition would participate in another interview exercise at the Istana.

BREAKING NEWS . . . ‘Sabah for Sabahans’ ready for North Borneo Separation Act 2022 . . .

‘Sabah for Sabahans’ can be passed by Parliament as North Borneo Separation Act 2022.

Brunei, S’pore, proof that brighter future awaits Borneo territories as independent nation-states.

It’s jurisprudence that Opinion isn’t law. Only the court can declare law.

Former Prime Minister Mahathir Mohamad claimed in an interview on Wed 8 Sept with Great People Television on Facebook Live, titled “Leadership Reflections and Perceptions with Dr Mahathir Mohamad”, that Sabah and Sarawak were better off being part of Malaysia.

Oil and gas rich Sabah and S’wak are the poorest parts of M’sia as studies by the World Bank and the Federal gov’t’s Economic Planning Unit (EPU) in recent years show.

The history of Singapore and Brunei since 16 Sept 1963, Malaysia Day, show that they are better off outside Malaysia.

Tiny S’pore’s pandemic shrunken GDP, at US$ 320b in 2020, isn’t too far from M’sia’s equally shrunken US$338b. In some years, S’pore overtakes M’sia. The S’pore dollar is valued at three times the M’sian Ringgit.

S’pore merged with Malaya on 16 Sept 1963, under the Malaysia Agreement 1963 (MA63). The island was given independence by M’sia in 1965 under the Separation Act. Brunei stayed out of M’sia at the 11th hour and remained a British protectorate until given independence in 1984.

Mahathir begs to differ with “Sabah for Sabahans” and “Sarawak for Sarawakians”, the running nationalistic themes in the Borneo Territories.

Sabahans for Sabah . . .

He did not mention “Sabahans for Sabah” and “Sarawakians for Sarawak”, two other running themes which may be less parochial and more palatable in Putrajaya.

“Sabah for Sabahans” was first raised in recent history during the Parti Bersatu Sabah (PBS) Administration (1985 to 1994) under Joseph Pairin Kitingan.

Pairin was charged with corruption after his party pulled out from the ruling Barisan Nasional (BN) coalition in 1990. BN was supposed to be a power-sharing formula based on consensus and compromises in decision-making. The BN Supreme Council, unlike the Supreme Council of its key component Umno, seldom met.

Instead, the BN virtually degenerated into a form of Umno Prime Ministerial dictatorship, driven by extreme positions. It was dominated and monopolised by Umno, based on the Ketuanan Melayu mantra (Malay political supremacy and dominance), a form of caste system based on special position, reasonable proportion (albeit on paper), and racial and other quota, suitability certificates, the public exam marking system being state secret, Official Secrets Act 1972, Internal Security Act 1960, licences, concessions, permits, and approvals which, except for ISA, favoured Malay.

Other mantra which drove Umno were demi (for the sake of) bangsa, agama dan negara (race, religion and country) which saw rhetoric and polemics plague national debate and the formation of Muhyiddin Yassin’s all-Malay, all Islamic and all Bumiputera (son of the soil) Federal gov’t on Sun 1 Mar last year. It fell on Mon 16 Aug.

BN’s fall from power . . .

Indian and Chinese in Malaya deserted the BN in droves in GE14 on Thurs 10 May 2018. It fell from power after an uninterrupted 61 years. Even in seats regarded Malay-majority, Indian and Chinese voters decide, a fact recently conceded by Mahathir. Indian have no seats in Malaya. However, in 67 per cent of the parliamentary seats, they decide.

The PBS pullout from BN saw Jeffrey, Pairin’s younger brother and Director of the Sabah Foundation, incarcerated under the draconian Internal Security Act 1960 (ISA) for nearly four years. He was released just before the snap 1994 Sabah elections.

Jeffrey, a PhD in international law and diplomacy from a Harvard University-affliated School, allegedly raised the Federal gov’t’s non-compliance on MA63.

He allegedly also ran an “educate the people” campaign on it, especially in the rural heartland where the Orang Asal (indigenous people) stay.

The 3rd allegation against Jeffrey was that he masterminded the “Sabah for Sabahans” campaign as Chairman of the Sabah Institute for Development Studies (Sabah IDS), a gov’t think tank that he initiated. I am a member of the Sabah IDS Consultative Council which has since been mothballed by the pandemic as the Sabah IDS Consultative Committee.

Never read MA63 . . .

Ironically, Mahathir conceded during the run-up to GE14 that he never read the MA63. He confessed that he merely followed the policies of previous Prime Ministers towards the Borneo Territories.

Muhyiddin Yassin publicly conceded after he was appointed the 8th Prime Minister on Sun 1 Mar last year that Sabah and S’wak were not states like the sultanates and ex-British settlements in Malaya but Teritories viz. organised but unincorporated.

MA63, like the Magna Carta in England, exists whether incorporated in the Federal Constitution or otherwise.

The Federal Constitution isn’t the Malaysia Constitution.

The Malaysia Constitution is an unwritten/uncodified ultimate political document based on the Malaysia Agreement 1963 (MA63), the Federal Constitution and the constitutional documents including declassified British colonial material on Malaysia. Putrajaya has so far not declassified the same material which is available at the British Museum Library at Kew Gardens, near London.

Force of Law . . .

The High Court of Borneo (Sabah and S’wak) and the Federal Court has referred to MA63 on several rulings as the source in force of
law.

MA63, like the Federal Constitution, isn’t law but force of law. MA63 remains the ultimate political document on the Equal Partnership of North Borneo, S’wak and Malaya in Malaysia, and hence has — in jurisprudence — force of law and emerges as the supreme law of the land. Law and force of law must have source to have jurisdiction, authority and power.

North Borneo and S’wak were not signatories to the Federation of Malaya Agreement 1948 which was reinforced by the Federation of Malaya Independence Act 1957.

“Federation” stands defined in Article 160(2) in the Federal Constitution as that set up under the 1948 Agreement in Malaya.

Self-gov’t Act . . .

Malaya, earlier in 1955, was given self-gov’t under a self-gov’t Act.

S’pore was given self-gov’t in 1959.

Brunei, a British protectorate since 1888, became independent in 1984.

North Borneo and S’wak were not given self-gov’t and independence before M’sia Day. MA63, or no MA63, the British merely transferred the Administration of the Borneo Territories to the Malayan gov’t on 16 Sept 1963.

The Malaysian gov’t became the successor gov’t to the Malayan gov’t and Malaysia the successor state to Malaya. The British troops left the two Borneo territories and the Royal Malay Regiment (RMR) marched in and “occupied” the land. The S’wak Rangers was renamed M’sian Rangers and the North Borneo Border Scouts was disbanded. The multiracial Federation Army stayed in Malaya.

Britain, financially affected by World War II, was anxious in 1963 to transfer the defence burden in Borneo to the relatively “rich” Malayan gov’t with whom it signed a 5-Power Defence Agreement (FPDA). It included Australia, New Zealand and S’pore. It’s still valid and the most enduring Agreement of its kind in the world.

One Administration . . .

The British wanted their colonial commercial empire in North Borneo, S’wak, S’pore and Malaya under one Administration in Kuala Lumpur. They never expected that M’sia would soon exit the British from the economy.

The media in 1963 demonised Indonesia and the Philippines as “crocodiles”. The “crocodile theory” necessitated the FPDA.

MA63 mentions Malaysia as an Equal Partnership of North Borneo, S’wak and Malaya. S’pore, as stated earlier, merged with Malaya after a Yes/No referendum in 1962.

There was no referendum in North Borneo and S’wak on Malaysia.

The last British Governor of S’wak, Alexander Waddell, in fact left the territory on 15 Sept 1963. In North Borneo, William Goode, the last British Governor left the Territory on 16 Sept 1963.

Last Governor . . .

The last British Governor in North Borneo coining the term Sabah Day, on 31 Aug 1963, isn’t law. It’s Opinion.

Opinion isn’t law.

Only the court can declare law.

The threshold in jurisprudence and international law would have been met if North Borneo and S’wak had unilaterally declared Sabah Day on 31 Aug 1963 and S’wak Freedom Day on 22 July 1963 as self-gov’t or independence day.

Sabah Day, which awaits gazetting on 31 Aug 2022, is a reference in popular usage in recent years to 31 Aug 1963. It was in fact the Day when North Borneo and S’wak realised that Malaysia would only happen on 16 Sept 1963 and not on 31 Aug 1963, as initially announced by the UN Secretary-General in New York.

In law, 31 Aug 1963 probably cannot be gazetted as Sabah Day, 59 years later on 31 Aug 2022. Legislation cannot be retrospect (looking back). It has to be prospective (looking forward).

There’s no basis in law to claim that 31 Aug 1963 brought self-gov’t or independence to North Borneo. The Sabah gov’t does not celebrate Sabah Day, a phenomenon which only surfaced in recent years. The Federal gov’t has kept a discreet silence on Sabah Day which isn’t in history books anywhere in the world.

S’wak Freedom Day . . .

S’wak Freedom Day is another phenomenon which emerged in recent years. The S’wak gov’t, not so long ago, gazetted S’wak Freedom Day as dating back to 22 July 1963. It’s not known whether the gazette was preceded by an Enactment.

Gazette isn’t law but merely a gov’t announcement. Gazette cannot be challenged in court since it’s not law. However, the process can be challenged on procedural grounds and law, according to many subject matter experts in the legal fraternity.

Sabah strongman Jeffrey Kitingan says that the Sabah gov’t will gazette Sabah Day 31 Aug 1963 on 31 Aug 2022. There has been no official statement from the Sabah Territorial Assembly on whether it plans a Sabah Day Enactment.

Such an Enactment can also be raised in Parliament as a Motion referring to 31 Aug 2022, not 31 Aug 1963, and passed as an Act similar to the S’pore Separation Act in 1965.

The onus is on the Sabah and S’wak Assemblies to Invoke Article VIII of MA63 for a new form of self-determination separate from Malaysia Day on 16 Sept 1963. The Borneo Territories can still remain in the M’sian Common Market created by the British transfer of their Administration to the Malayan gov’t.

Self-determination . . .

Self-determination denotes the legal right of people to decide their own destiny in the international order, according to the Definition.

Self-determination is a core principle of international law, arising from customary international law, but also recognized as a general principle of law, and enshrined in a number of international treaties.

In 1963, North Borneo and S’wak were promised development and security by Malaya and S’pore.

Instead, North Borneo now Sabah has been swamped by an estimated 1.7m immigrants including 700K given work permits, 600K with dubious documents and 400K undocumented people. S’wak has 500K immigrants including 260K given work permits and 240K undocumented people.

The “delay” on Malaysia arose from objections lodged by Indonesia and the Philippines on Malaysia covering North Borneo and S’wak as well. President Sukarno of Indonesia described Malaysia as a neo-colonialist plot against the people in the two Borneo territories. He launched the konfrontasi (confrontation) armed campaign against M’sia based on the Ganyang Malaysia (hang Malaysia) international campaign.

Self-gov’t and independence . . .

Manila felt that the British should first give self-gov’t and independence to North Borneo before the territory can consider M’sia as a possibility. Since that was not done, Manila wanted to press a “territorial” claim to the eastern seaboard of North Borneo, now designated as the Eastern Sabah Security Zone (EssZone) under the Eastern Sabah Security Command (EssCom) i. e. the original Sabah.

Sulu rule . . .

The Philippines gov’t claims that the defunct Sulu Sultanate, under a “sultan” recognised by Manila, had transferred “sovereignty” over EssZone to Manila.

Under a 1939 Declaration, the High Court of Borneo in Sandakan held that nine heirs of the last sultan of Sulu had the “compensatory right” to receive RM5K per annum from North Borneo for giving up the right to collect toll along the main waterdays in southern EssZone and northern EssZone. The Sulu claim has been disputed by Brunei but not in court.

The High Court declined to consider a “territorial” claim by the heirs to the eastern seaboard on the grounds that “sovereignty resides with the people”. It was not possible, in law, for the heirs of the last sultan to own the eastern seaboard territory. There was no proprietory right to the territory.

Wisma Putra has been paying the RM5K every year to a bank account in Manila since 1963. However, the monies reportedly remain uncollected although it was increased in recent years to RM5, 500. There have been media reports that Putrajaya may have stopped paying the RM5,500 since previous payments remain uncollected.

Riverine kingdoms . . .

Sulu rule along the eastern seaboard of North Borneo, like all riverine kingdoms in the Archipelago including Malaya, was not territorial. It was confined to collecting toll at the river mouth of the main waterways.

In Malaya by comparison, the British stopped toll collection, converted the rivermouth kingdoms into territorial sultanates. They built roads and railways, laid out airstrips and developed the seaports.

Earlier, by Treaties in 1826 and 1909, the Kingdom of Siam transferred the southern half of the Kra Peninsula, except for Pattani (which includes Narathiwat, southernmost Songkhla, Satun, and Yala) to British Administration.

Mahathir’s reference to Malaya as tanah Melayu (Malay land) is a misnomer. The British gazetted gov’t reserves on Orang Asli (indigenous people in Malaya) land. These were referred to as Malay reservation land.

According to the 2010 National Census, Malay form 50.4 per cent of the population in Malaysia.

In the 2020 National Census, delayed by the pandemic, the Malay have been classified under the Bumiputera (sons of the soil) political label along with other Muslim, Orang Asal (indigenous people in Borneo) and Orang Asli (indigenous people in Malaya).

Malay number unknown . . .

The Malay number in the population remains unknown. There’s no “ethnic” breakdown in the figures.

Article 160(2) defines Malay as an inclusive form of identity for Muslim including converts domiciled or born in Singapore or Malaya by Merdeka (Independence), 31 Aug 1957. Their descendants are also Malay.

It’s said the National Registration Dept (NRD) has since dropped Malay from the chip on the national identity card, MyKad, but retains Islam on the front. This allows Muslim nationwide including allegedly illegal immigrants, who habitually speak the Malay language, to consider themselves Malay.

In law, there may be constitutional issues with the Malay Definition in the Constitution which remains colour-blind.

BREAKING NEWS . . . Ismail Sabri at mercy of 4 MPs from ‘court cluster’ . . .

New M’sian PM, having only 32 unconditional nominations, faces confidence motion in 222-seat Parliament.

Ismail Sabri’s days may be numbered if ‘winners take all, losers lose all’, the writing on the wall.

It’s said that Melayu mudah lupa (Malay forgets easily). According to the 2010 National Census, Malay form 50.4 per cent of the population in Malaysia.

In the 2020 National Census, delayed by the pandemic, the Malay have been classified under the Bumiputera (sons of the soil) political label along with other Muslim, Orang Asal (indigenous people in Borneo) and Orang Asli (indigenous people in Malaya).

The Malay number in the population remains unknown. There’s no “ethnic” breakdown in the figures.

Article 160(2) defines Malay as an inclusive form of identity for Muslim including converts domiciled or born in Singapore or Malaya by Merdeka (Independence), 31 Aug 1957. Their descendants are also Malay.

It’s said the National Registration Dept (NRD) has since dropped Malay from the chip on the national identity card, MyKad, but retains Islam on the front. This allows Muslim nationwide including allegedly illegal immigrants, who habitually speak the Malay language, to consider themselves Malay. In law, there may be constitutional issues with the Malay Definition in the Constitution which remains colour-blind.

Agong an exception . . .

The Agong may be an exception on the “Melayu mudah lupa” theory.

He said before Umno vice-president Ismail Sabri was appointed Prime Minister on Sat 21 Aug that the latter must face a confidence motion in Parliament when it reconvenes on Mon 13 Sept. Parliament adjourns sine die before Christmas Day.

Article 43 (2) (a) of the Federal Constitution gives the Agong the power to appoint a Prime Minister.

Article 43 (2) (b) provides for the appointment of the Cabinet as well.

Article 43(4) covers a Prime Minister who ceases to have majority in Parliament.

Article 39 — “Executive authority of Federation” — states that Agong can exercise executive authority or delegate such powers to a Prime Minister and Cabinet, a Minister authorised by Cabinet, or Parliament may by law confer executive functions on other persons.

“Malay First” Muhyiddin Yassin resigned on Mon 16 Aug as Prime Minister after it became clear that he would not survive a confidence motion in Parliament on Tues 7 Sept. He headed an all-Malay, all-Islamic, all-Bumiputera Federal gov’t formed on Sun 1 Mar last year.

Ketuanan Melayu . . .

It was driven by the idea of ketuanan Melayu (Malay political supremacy and dominance) and rooted in Malay nationalism, a concept created by Malayalee Muslim from Kerala, southwest India, in S’pore. Read the “Origin of Malay Nationalism” by Professor William Roff.

Muhyiddin’s predecessor Mahathir Mohamad resigned abruptly on Mon 24 Feb last year in a struggle with Anwar Ibrahim over the PM’s post.

The Agong further decreed, in advising Ismail Sabri, that “winners cannot take all, losers lose all”. Muhyiddin, before he resigned, reached out to the Opposition with a 7-Point Plan. It was an exercise in futility. The majority non-Malay Opposition read the offer as too little, too late, and a “last minute desperate attempt to save himself”.

Muhyiddin has a good track record as an able and experienced Administrator in Johor and Putrajaya. Unlike Mahathir, he worked closely with S’pore. Mahathir felt that S’pore made Malaysia look bad and was benefiting at the latter’s expense by exploiting every weakness.

However, it’s the stark reality that Muhyiddin has been found wanting during the pandemic.

People suffering . . .

To be fair to him, anyone would have been found wanting during these trying times. Still, he could have done better but failed to do so. Politics may have got in the way, and good gov’t, science and data took a back seat. The virus cases raged, the economy continued to head south, and the people’s suffering increased exponentially. The public bayed for Muhyiddin’s blood.

No court will go against the Agong on his role under the Constitution. The matter is non-justiciable.

In jurisprudence, the nature of human relationships may be regulated by the Holy Bible, the Ten Commandments, Adat, international law, Constitution, Parliament, case law, the court based on what parties in dispute submit on issues in conflict, out of court settlements, prima facie cases, administrative law and matters which may even be beyond the Constitution, law and court.

Law, ultimately, remains the power of language on regulating human relationships based on mulling over and coming up with Opinions, based on inspirations, that can stand up in court.

Source of law . . .

However, law must have source to have jurisdiction, authority and power. According to jurisprudence, God isn’t a source in law.

Agong’s recent decrees, for want of a better term, have source based on what both sides of the political Divide agreed, or at least by not objecting, and the public positions taken.

The Agong remains above the fray notwithstanding the special circumstances which arose after Muhyiddin resigned. Again, both sides of the political Divide deferred to the Agong.

When Muhyiddin resigned, the Agong could have pointed in the direction of Parliament House, and closed the Istana gates, if he did not want to invite another MP to form the gov’t or he did not want to exercise executive authority under Article 39.

It was clear on Fri 20 Aug that despite the Istana’s call, days earlier — via Speaker Azhar Harun’s email to all 220 MPs — for only unconditional votes, Ismail Sabri only secured 32 unconditional nominations for the 222-seat Parliament. Two seats — Batu Sapi in Sabah and Gerik in Perak — are vacant.

Of the 114 nominations that Ismail Sabri received on Fri 20 Aug at the Istana, 82 were conditional i.e. 50 from Perikatan Nasional (PN), 18 from Gabungan Parti Sarawak (GPS) and 14 from the Umno “court cluster”.

PM may fall like ten pins . . .

Since most of the 14 MPs form the “court cluster”, their support may be shaky, and getting shakier by the minute as court cases proceed. If four MPs pull out, Ismail Sabri would on paper fall like ten pins. Deja Vu!

Unfortunately for the Umno “court cluster”, Pakatan Harapan (PH) led by Opposition Leader Anwar Ibrahim has promised virtually unconditional support if the accused MPs try to dislodge him from power. PH has 90 seats in Parliament.

It can be argued that there’s no reason for the 106 Opposition MPs, including Gua Musang MP Tengku Razaleigh Hamzah, to support Ismail Sabri when he excluded them from the Cabinet and gov’t despite Agong’s call.

Muhyiddin was forced to resign on Mon 16 Aug after the 14 Umno MPs and Razaleigh withdrew their support, leaving him with only 100 MPs including 27 lawmakers from Umno. Razaleigh even wrote to Speaker Azhar Harun and switched his seat to the Opposition side in Parliament.

The 14 MPs publicly declared that they were not against the PN+ gov’t in Putrajaya. They were only against Muhyiddin as PM. They alleged that he mishandled the pandemic and the economic recovery, and that was probably true. They never mentioned the numerous charges most of them were facing in court for corruption, bribery and deriving personal benefit, abuse of power, criminal breach of trust, conflict of interest, money laundering and tax evasion. All these involved billions from state coffers.

1MDB Scandal . . .

Muhyiddin, before he stepped down, publicly disclosed that he was under pressure from the Umno “court cluster” to free them of their charges. Former Prime Minister Najib Abdul Razak, who attained international notoriety for the global 1MDB Scandal, vowed to sue him.

It was Ismail Sabri who was the Senior Minister (Security) in charge of managing the pandemic under the Muhyiddin gov’t.

PN’s conditions, briefly and bluntly put, ensures under several euphemisms that the Prime Minister would not interfere in court cases.

Agong could have invited Opposition Leader Anwar Ibrahim, based on parliamentary conventions in the Commonwealth, to form the gov’t. Anwar had the nominations of 105 MPs i.e. minus Razaleigh who reportedly nominated himself for the PM’s post.

Having said that, the media has reported that Anwar had the “secret support” of the 14 MPs linked to the Umno “court cluster” and Razaleigh, if push came to shove. Armed with this confidence, Anwar reportedly did not reach out to GPS for its 18 nominations. GPS itself publicly disclosed this fact and expressed surprise. If Anwar had reached out to GPS, their support would be conditional. They would want assurances from Anwar that the Federal gov’t would comply fully with the Malaysia Agreement 1963 (MA63) and Borneo rights.

GPS flexible on nominations . . .

GPS was flexible with its 18 nominations. They would support any MP that Agong appoints as PM. However, such support would be conditional.

If Razaleigh had been picked as PM-designate on Fri 20 Aug by the Agong, the other 41 Barisan Nasional (BN) MPs was expected to switch camps and support him. The 41 includes Ismail Sabri and 36 other Umno MPs and four lawmakers from BN component parties viz. MIC (one), MCA (two) and PBRS (one).

Alternatively, Agong could have decreed that the Prime Minister would be appointed AFTER a confidence motion in Parliament.

Under such circumstances, the confidence motion cannot be a “one horse show”.

Three candidates, or more would be proposed and seconded for the job as head of gov’t. If no nominee secured at least 51 per cent of the votes cast, there would have to be a runoff between the top two contenders.

Parliamentary procedures don’t call for all 200 MPs to be present. The quorum for Parliament to proceed only needs 26 MPs to be present. That means 14 votes are sufficient to nominate the PM-designate. The 14 votes do not constitute a majority, i.e. 111 MPs, of the 220 MPs. That’s a different matter. The 14 votes take the “random sampling” approach, for want of a better term, and can be considered as reflecting majority in Parliament, when push comes to shove.

Privileges of Parliament . . .

Amendments to the Constitution are a different matter. Notwithstanding the quorum, at least half the MPs in Parliament must be present, and of these two-thirds must vote in favour of the Amendments to be passed.

Article 63 — “Privileges of Parliament” — holds that “the validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court”.

Again, “no person shall be liable to any proceedings in any court in respect of anything said or any vote given by him when taking part in any proceedings of either House of Parliament or any committee thereof”.

Further, the Doctrine of Separation of Powers — a Basic Features Doctrine in the Constitution — presides over the three arms of gov’t viz. the Executive, Legislature, and Judiciary. It’s a check and balance situation where no one arm of gov’t interferes in the other two arms.

The media, the 4th Estate as a public service organisation, keeps an eye on all three arms of gov’t on matters of public concern and public interest, the court of public opinion and the social media.

Journalism remains about bad news.

BREAKING NEWS . . . Orang Asal fear that rule of law, basis of the Constitution, eroded if secularism compromised . . .

Pandemic brings fresh look at Sabah’s large illegal immigrant population.

Vaccination cert may bring PTI into industrial powerhouse equation.

Many PTI (pendatang tanpa izin or illegal immigrants) in Sabah are being deported from time to time throughout the year. It’s a campaign that goes on relentlessly, driven by local politics, only slowed down by the movement control order restrictions and lockdown imposed by the pandemic.

Many other PTI probably cannot be deported, unless their home countries take them back, having been in the Territory for 40 years or more and become “stateless” in the process. They live in a legal twilight zone. Local politics prevent Parliament from granting them Amnesty on humanitarian grounds and international law on human rights.

The Orang Asal (indigenous people) are fiercely opposed to the PTI and want them gone. It’s an open secret that outsiders who were not perceived as “threats” may gain acceptance, albeit wary, among locals but definately not for voting purposes.

The Orang Asal fear that the rule of law, the basis of the Constitution, would be eroded if secularism is compromised when outsiders can’t fit in.

Twilight zone . . .

Those living in a legal twilight zone can obtain a Special Pass valid for a maximum one year, from Immigration, but not many apply for this facility. They probably fear arrest and detention, if not deportation as well. Special Pass would enable the holders to apply for green MyKad (temporary residence) valid for a year and renewable.

We can safely assume that the PTI earmarked for deportation are mostly those from the Philippines and Indonesia who got off the boat yesterday. Others were probably picked up in local waters as they made for remote and isolated illegal “landing” spots and numerous known “rat trails” in the swampy stretches along the long 1, 743 km Sabah coastline. The media has these stories.

The deportations are literally a drop in the ocean, considering the large number of PTI in Sabah.

Detaining and deporting the PTI remains an exercise in futility. Those deported by the front door in the morning, it’s said, return by the backdoor in the evening. The deportees are not dropped off in Manila and Jakarta and detained there, as popularly assumed in Sabah, but on Philippine and Indonesian islands within a stone’s throw away from the Territory. Many islands in neighbouring countries are just a hop, skip and jump away from Sabah.

Jus sanguinis . . .

Sebatik island in southeast Sabah, for example, is divided almost equally between M’sia and Indonesia. Many women in the Indonesian half come over to the M’sian half to give birth. However, citizenship in M’sia under operation of law is by jus sanguinis (descent), not jus soli (birthplace).

Numerous Sabah islands in the three seas — South China Sea, Sulu Sea and Celebes Sea — have neither been properly named nor inhabited. These could probably be leased to rich locals and foreigners for their private hideaway but, unfortunately, pirates and “terrorists” in the region lurk the waters in these areas.

If Sabah wants to emerge as an industrial powerhouse in the region, it may need rethink on the PTI, especially those who cannot be deported for various reasons.

If the estimated 1.7m foreign workers and PTI in Sabah can be brought into the big economic picture on industrialisation as well, it may provide rich dividends. The onus remains on the illegal immigrants to use the vaccination cert as proof of identity in law, but it’s not a valid travel paper. If they have lost the citizenship of the home country by probably being away too long, they can apply for an Emergency Certificate of Identity from Immigration in Msia to travel. Like in the case of permanent residents (red MyKad), they need a re-entry permit to return to M’sia.

Industrial skills . . .

Pandemic, or no pandemic, if the Sabah gov’t wants to create jobs on a large scale in the Territory, it can choose two or three global industrial sectors, train the manpower required including PTI, and plug into the global supply chain and international logistics.

There’s a lack of industrial skills in Sabah to help drive digitisation, digitalisation, and digital transformation, the mantra in e-commerce, e-economy and the digital economy. The future cannot be avoided for much longer especially in the post-pandemic world.

For example, Sabah as a regional airhub recognised by budget airline AirAsia in particular can manufacture one or two components for electrical vehicles. The electrical vehicle, inspired by climate change and depleting fossil fuels, has only 20 moving parts compared with the 3K used by the internal combustion engine.

Bell the cat . . .

Who will bell the cat? The Sabah Institute of Development Studies (Sabah IDS), a gov’t think tank, did a study before the pandemic on the Electrical Vehicle (EV) Industry. The gov’t waited for investors who never came, who were probably never there in the first place.

Instead of waiting for investors, virtually black cats which are not there in a darkened room, the Sabah gov’t should take the lead and initiate the EV industry in the Territory to feed the global market, India and China in particular. The electronics industry in S’pore provides a template on globalisation and industrialisation. However, there may be a lack of leadership and managers on this in Sabah, as in so many other areas, especially on Borneo rights. S’wak may be no better.

There’s a need for Sabah to reach out and plug anew into the Indian and Chinese economies. Apparently, these economic giants are the future of the automobile industry in the world. Tesla from South Africa via America may have gone to China for all the right reasons. Soon, the Company may also go to India and Indonesia as well, as labour in a greying China gradually becomes more expensive.

Unique feature . . .

For economies of scale, internal and external, studies show that at least 1m units per component should be manufactured annually, mostly for export.

Toyota, the largest automobile manufacturer in the world, is a case in point. The Company manufactures one million vehicles a year. It’s not only the largest manufacturer of its kind in Japan but also the biggest exporter in the world for its category.

One unique feature of Toyota vehicles is that they are virtually “indestructible”. Toyota vehicles manufactured 40 years ago are still on the road. Spare parts continue to be available in plentiful supply and they are inter-changeable, no matter the Toyota model or how old the vehicle.

Industrialisation proposed aside, the existence of a large illegal immigrant population in Sabah shows that there are many jobs and business opportunities in the Territory, gov’t or no gov’t. The people, especially foreigners and Malaysians from S’wak and from the other side of the South China Sea, mostly create these jobs and opportunities.

Bandwagon . . .

Pakistani, Bangladeshi and Indian have also jumped on the bandwagon in Sabah as retailers, textile and carpet merchants, door-to-door cloth peddlers, vegetable wholesalers and halal (kosher) restaurant keepers serving from fusion menus, Indian and other local, and running a variety of other businesses, mostly small trades. Under the Constitution, Article 29, citizens of the Commonwealth and the Irish Republic are not considered foreigners in M’sia.

Better days . . .

Filipino in the towns run mini buses, reflexology salons, massage parlours and karaoke joints. Indonesians run taxi services and eating stalls. Both provide island-hopping boat services and are in the construction industry, if not on plantations and the timber industry which has seen better days. Sabahans and S’wakians have signed up with e-hailing rides as drivers and do food deliveries booked online. The Gig economy has arrived.

The South Koreans form a small community mostly in Kota Kinabalu. The capital has gone from cosmopolitican to international city status. The South Koreans run ethnic Korean restaurants, grocery stores, reflexology salons for Korean tourists, and do inbound tours from South Korea. They have their own Churches.

Historically, Sabah was better known worldwide when it was North Borneo. Very few people in the outside world beyond east Asia know Sabah. So much historical value was lost when North Borneo became Sabah. Borneo, the Land of the Head Hunters, has been known worldwide for centuries. That’s the proverbial goose that lays the golden eggs in the tourism and hospitality industry.

Job creation . . .

The creation of jobs and business opportunities in a Territory like Sabah may be more organic than systematically driven by gov’t. The law of inertia is at work.

The PTI sectors may not be exactly what most local youths are looking for, after having finished High School or even higher, and leaving the kampung (villages) probably for good except for occasional home visits. Local youth lack training for the job market and skills in demand. The lack of English speaking skills prevent them entering the private sector.

The employers tell the real “horror” stories in the job market.

Local youth need to get off their “high horses”, for want of a better term, and be willing to do virtually anything, perhaps even start right at the bottom. That does not mean remaining at the bottom forever. The youth should forget about wearing neckties and suits and working in air-conditioned comfort. They can’t continue to live in fear of the sun.

Plague . . .

Sabah will be plagued forever by the PTI, and chasing the tail on poverty eradication as the World Bank puts it, unless local youth emulate these foreigners, pace them every step of the way and compete. It’s not rocket science. The World Bank has diplomatically cautioned for many years that the Philippines in particular, and Indonesia not far behind, may be looking the other way as their poor move to Sabah illegally without M’sia even realising it. The jury may still be out on this.

History shows that the economy, throughout thousands of years worldwide, avoid getting caught up in the debate on outsiders and locals. The employers are also fuelling the influx of immigrants, legal and illegal, in Sabah. The perennial push-pull factors are at work in the countryside and neighbouring countries.

In S’wak, for example, the local Bidayuh in the southern part of the Territory have ventured into many areas previously monopolised by immigrants. These include skilled trades and small business areas.

Bidayuh . . .

The Bidayuh can also be found on offshore oil and gas platforms all over the world and in certain states and sultanates in Malaya where they are invariably mistaken as Filipino, Myanmarese or even Mongolian “who just came to M’sia”. M’sia means Malaya to the people there even after 58 years since Malaysia Day on 16 Sept 1963 which saw Sabah, S’wak and S’pore enter the picture with Malaya. S’pore was given independence by M’sia in 1965.

AirAsia Farm . . .

Locals in Sabah, coming from rural backgrounds, are not willing to venture into smalltime agricultural pursuits as, again, it means working in the sun “after having gone to school”. In fact, most of the Sabah interior is hilly and mountainous, breezy, the climate mild and cool.

The AirAsia Farm Application, for example, provides an excellent platform. It’s an innovative opportunity to market agricultural produce beyond Sabah. These bring in higher incomes even for small farms.

Instead, Sabah youth are mostly flocking to Malaya in search of work in air-conditioned comfort. If they don’t find any, the popular narrative is that they end up sleeping beneath bridges after having run out of money, and apparently “too ashamed” to call home for help, or return to the kampung, hang their head in the face of “I told you so” as they run the gauntlet, and admit defeat. The media explores this phenomenon from time to time but mostly only on dry days.

Beneath the bridge . . .

Interestingly, many PTI from Sabah have been picked up by local authorities beneath the bridges, but not for sleeping there. It’s for posing as Sabahans. It’s not known what happens to them. No one is telling their stories. They are probably in detention or under remand in prison, if not set free.

Obviously, these PTI can’t be sent “back” to Sabah. It would not be possible to deport them either if they have been in Sabah for a few generations, no doubt as undocumented people or holding “dubious” documents. It’s a serious breach of security when they can pass through Immigration in Sabah and get to Malaya without anyone being any wiser. There’s no Immigration in Malaya for Sabahans and S’wakians. M’sia remains one country, three Immigration systems.

National Census . . .

The 2010 National Census showed that there were 3.2m people in Sabah as follows: 1.5m Malaysians and permanent residents including several thousand stateless locals mostly Orang Asal, people from Sarawak and Malaya; 700K foreigners with work permits, 600K foreigners with “dubious documents” and 400K undocumented foreigners. The 2020 National Census, it’s estimated, may read 3.9m in Sabah. It has been delayed by the pandemic.

We can take the cue on “dubious documents” from Malaysian Home Minister Hamzah Zainudin declaring on the phenomenon before the snap Sat 26 Sept election last year. Hamzah warned that the Home Ministry would station NRD (National Registration Dept) officers at polling stations “to prevent illegal immigrants voting”.

The reading is that there are many PTI “voters” in Sabah with blue MyKads, held by citizens, listed in the electoral rolls but not in the NRD data bank. Locals risk losing their sovereignty if foreigners vote.

RCI Report . . .

The 2013 Royal Commission of Inquiry (RCI) on Illegal Immigrants in Sabah explored this phenomenon. It also discovered the existence of a large number of people born overseas but holding late registration local birth certificates in the Territory.

Some were taken to court but released on the grounds that “citizenship once given cannot be taken back”. The National Registration Act 1959 shows that nothing could be further from the truth, the letter of the law not being the sum total of the rule of law. That’s another story, for another day.

BREAKING NEWS . . . If ‘Court Cluster’ FREE, return funds allegedly stolen from the people . . .

Parliament can negotiate with ‘court cluster’, others, for out-of-court settlement.

The real issue remains the return of ‘suspect funds’ to the people.

It’s said in law that “a man is innocent until proven guilty” and “better to let a thousand guilty men go free, than hang an innocent man”.

Having said that, it can’t be denied that the so-called court cluster, which needs no introduction, remains the “elephant in the room” that bedevils politics in Malaysia.

There’s a case for Parliament to set up a Special Committee across the political Divide on the “court cluster”. The Committee can negotiate with the “court cluster” for the return of funds they allegedly took from the state and institutions.

Under Article 63 — Privileges of Parliament — “the validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court”.

The Basic Features Doctrine which governs the Federal Constitution includes the Doctrine of Separation of Powers which presides over the Executive, Judiciary and Legislature.

The said Committee can take its cue from High Court Judge Mohd Nazlan Mohd Ghazali’s verdict on Tues 28 July 2020 on the SRC International case.

The judge pointed out that the then Prime Minister Najib Abdul Razak “did not take the logical step of returning the RM42 million involved to the company”. The judge, having been transferred from the commercial to the criminal court, obviously felt that it was more important to get back allegedly stolen funds. Jailing the accused does not benefit the people.

Logical step . . .

Based on the Judge’s remarks, the court can free the “court cluster” of all charges if they take the “logical step” of returning all the funds they allegedly took from the state and institutions.

The Committee can help “broker the peace”.

Once there’s “settlement”, the “court cluster” can write letters of representation to the Attorney General’s Chambers (AGC) and the Attorney General (AG) on their charges. The AG can take the letters of representation to the court and recommend discharge not amounting to acquittal (DNAA). The court would either accept the recommendation or substitute with discharge and acquittal (DNA) if it feels that it would be unfair to have the charges hanging over the head of the accused.

Under Article 145(3), “the Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native court or a court-martial”.

Time running out . . .

Time is of essence if we consider that the SRC Appeal case has ended. The Court of Appeal reserved judgment on Tues 18 May 2021. The proposed Parliamentary Special Committee must act before the Court of Appeal rules on the case.

Also, separately, the Special Commissioners of Income Tax (SCIT) will hear Najib’s case from Jan 3 to 4, and April 4 to 7 next year on RM1.69b taxes due.

The “court cluster” have always claimed the charges against them were “politically motivated”, and the court “manipulated”. It was further claimed that this smacked of selective prosecution and selective persecution.

The Committee can address these concerns by casting the net wider and reaching out for “negotiating” with other parties who have always figured in the social media. These have come under public scrutiny for allegedly having unexplained extraordinary wealth and fabulous lifestyles. Pictures of their mansions, completed and under construction, and fleets of luxury cars, and numerous wives, mistresses and girlfriends are going viral in the social media.

Those who were involved in vaccine purchases are the latest addition.

Open secret . . .

The people on the list are an open secret in the social media and range from Sabah and Sarawak to Malaya. The Malaysian Anti-Corruption Commission (MACC) remains handicapped. Under the MACC Act 2009, the MACC does not carry out due diligence on “inflated” gov’t contracts. It only looks at whether the gov’t signed the contracts awarded to companies. The letter of the law isn’t the sum total of the rule of law.

Definition of Money Laundering . . .

In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law. It can’t be the intention of Parliament, in enacting the MACC Act 2009, to exclude due diligence.

MACC has been confined to singing for its supper by going after the “small fish” or ikan bilis. School principals awarding small contracts are a favourite target for prosecution.

It’s not known why the Inland Revenue Board (IRB) and Bank Negara does not act under the relevant laws. Najib appears an exception. One swallow does not mean Spring.

International law defines money laundering as having assets far in excess of what can be legitimately accumulated over a lifetime. Such assets can be forfeited by civil action filed in court, as done by the US Department of Justice (DoJ) on the 1MDB Scandal which exploded worldwide. Criminal suits would only be filed if the civil action was challenged.

The people can also initiate class action suits in M’sia, and jurisdictions overseas, against errant parties, local and foreign.

Contempt of court . . .

It was not so long ago that online news portal malaysiakini was fined RM500K by the Federal Court for allegedly facilitating contempt of court by five subscribers. The subscribers, among others raised questions on former Sabah Chief Minister Musa Aman being discharged and acquitted on 30 bribery and 16 money laundering charges on Tues 9 June 2020.

AG Idrus Harun cited an Affidavit in Support by former AG Abdul Gani Patail. It was crucial in freeing Musa. It’s not known whether the court and the AG knew that Gani and Musa were reportedly closely related by marriage. It may be an open secret in Sabah.

Apparently, Musa did not have to return any funds to the state. The IRB reportedly did not go after him for conceding in court that he received RM380m in political donations. Donations above RM5K are subject to taxes.

Muhyiddin’s downfall . . .

Patently, the “court cluster” brought down Prime Minister Muhyiddin Yassin on Mon 16 Aug and replaced him with Umno vice president Ismail Sabri on Sat 21 Aug. Umno was the backbone of the Barisan Nasional (BN) coalition which was defeated in GE14 on Thurs 10 May 2018 after an uninterrupted 61 years in power.

The 15 defecting MPs, mostly part of the “court cluster”, never referred to their numerous cases in the criminal court in moving against Muhyiddin. They left him with 11 MPs short of a simple majority in Parliament.

Instead, they claimed that Muhyiddin was “incompetent” in managing both the pandemic and the economic recovery. The 100 MPs still with Muhyiddin begged to differ with the 15 MPs and the other 105 Opposition MPs who publicly demanded that the Prime Minister step down. Eighty nine of the 105 MPs were led by Opposition Leader Anwar Ibrahim.

Ironically, 14 of the 15 MPs and the 100 MPs still with Muhyiddin joined forces in a “marriage of convenience” on Fri 20 Aug at the Istana to nominate Ismail Sabri — one of the 100 MPs — as Prime Minister.

Muhyiddin, in a parting shot, openly alleged that the “court cluster” turned against him after he refused to help free them from charges in court. If true, then Ismail Sabri will be in the same trouble sooner rather than later.

BREAKING NEWS . . . ‘Unhappy’ S’wakians avoid Merdeka’57 joy, Sabahans see Aug 31 as Day in 1963!

‘Unhappy’ S’wakians avoid Merdeka’57 joy, Sabahans see Aug 31 as Day in 1963.

British left without self-gov’t, independence, for Borneo territories.

It’s an open secret that many people in Malaya still remain blissfully unaware that Malaysia remains an Equal Partnership of Sabah, Sarawak and Malaya. M’sia, for them, means Malaya 31 Aug 1957. Sabahans and S’wakians have experienced this phenomenon on the other side of the South China Sea. Don’t take my word for it. Just ask around.

It has been 58 years since Malaysia Day on 16 Sept 1963.

Not surprisingly, academicians in Malaya for one have generally argued — probably on behalf of local politicians — that people in the Borneo territories should celebrate Merdeka, 31 Aug 1957, as the National Day of Independence.

The same academicians don’t explain why people in Malaya, except for Sabahans and S’wakians there, don’t celebrate Malaysia Day.

No state in Malaya, and the Federal gov’t, celebrates 16 Sept 1963.

The national celebration of Malaysia Day since 2010 has always been alternated between Sabah and S’wak. The Prime Minister presides. Malaysia Day was “banned” before 2010 when it was declared a national public holiday. In law, before 2010 was to avoid “confusion”.

Sabah Day . . .

Sabahans have in recent years observed Aug 31, but as a reference to 1963, as Sabah Day. They have stopped mentioning Merdeka Day.

Unlike Malaya, Sabah and S’wak only became British crown colonies after World War II in 1945. The British promised to restore S’wak’s independence.

Sabah, before the Japanese Occupation, was run by the British North Borneo Chartered Company which sold the territory to the Colonial Office in London for 1.2 million pounds.

S’wakians have in recent years celebrated July 22, a reference to 1963, as Sarawak Freedom Day. They see no reason to join in the Merdeka Day joy in Malaya. The last British Governor of S’wak, Alexander Waddell, in fact left the territory on 15 Sept 1963. In Sabah, William Goode, the last British Governor left North Borneo on 16 Sept 1963.

The last British Governor coining the term Sabah Day isn’t law.

It’s Opinion. Opinion isn’t law.

Only the court can declare law.

No parallels . . .

Sabahans, and S’wakians, don’t see the parallels that academicians in Malaya make between Merdeka Day 31 Aug 1957 and 4 July 1776 when 13 colonies in America unilaterally declared independence from Britain.

Although America expanded from coast to coast, Atlantic to the Pacific, July 4 remains America’s national Independence Day.

There are some problems with the parallel theory.

For one, it was the people in the 13 ex-British colonies who went westwards and settled the land. So, they continued to celebrate July 4. They were joined in later years by immigrants who had no reason not to celebrate July 4.

Washington purchased Alaska from the Russian Empire on 18 Oct 1867 for US$7.2m. Moscow felt that the territory was difficult to defend.

The US purchased Louisiana from France in 1803 for US$15m.

The Hawaiian islands were officially annexed by the US on 12 July 1898.

July 4 remained through all these developments as the new territorities were organised and incorporated in the United States of America.

Unincorporated . . .
Sabah and S’wak, although organised, were unincorporated in the Federation defined in Article 160(2). In law, they are territories, not states as in Malaya. The Malaysia Agreement 1963 (MA63) remains the basis for the Equal Partnership of Sabah, S’wak and Malaya in Malaysia. The M’sia in MA63 isn’t the Federation in Article 160(2) although it was said that the word Malaya would no longer be used after 16 Sept 1963.

Again, M’sia the Federation under Article 160(2) of the Federal Constitution, refers to the Federation of Malaya Agreement 1948 which was reinforced by the Federation of Malaya Independence Act 1957. Sabah, and S’wak, are not party to the 1948 Agreement and 1957 Act.

The British did not pass self-gov’t and independence Acts for Sabah and S’wak before they left. S’pore was given self-gov’t in 1959, merged with Malaya on 16 Sept 1963 under MA63, and obtained independence from Malaysia on 10 Aug 1965 under the S’pore Separation Act.

Malaya became self-governing in 1955.

United Nations . . .

Aug 31 remains the day in 1963 that Sabah and S’wak realised that Malaysia had been shifted by the UN to 16 Sept 1963. The delay was caused by Indonesia and the Philippines opposing Malaysia if it included Sabah and S’wak.

MA63, or no MA63, the British transferred the Administration of Sabah, and S’wak, to the Malayan gov’t on 16 Sept 1963. The Malayan gov’t restyled itself as the Malaysian gov’t. In law, the Malaysian gov’t was the successor gov’t to the Malayan gov’t.

The British wanted their colonial commercial empire in Sabah, S’wak, S’pore and Malaya under one Administration in Kuala Lumpur. They never expected that M’sia would soon exit the British from the economy.

Under the Equal Partnership concept, there are two High Court systems in M’sia viz. High Court of Borneo (Sabah and S’wak) and High Court of Malaya. English remains the language of the court in the Borneo territories, Bahasa M’sia at the court in Malaya.

Development and security . . .

In 1963, Sabah and S’wak were promised development and security by Malaya and S’pore. Both Borneo territories remain the poorest in M’sia, according to the Economic Planning Unit (EPU), Bank Negara, and the World Bank.

In addition, Sabah has been swamped by an estimated 1.7m immigrants including 700K given work permits, 600K with dubious documents and 400K undocumented people. S’wak has 500K immigrants including 260K given work permits and 240K undocumented people.

Britain, financially affected by World War II, was anxious in 1963 to transfer the defence burden in Borneo to the relatively “rich” Malayan gov’t with whom it signed a 5-Power Defence Agreement (FPDA) viz. including Australia, New Zealand and S’pore. It’s still valid and the most enduring Agreement of its kind in the world.

The media in 1963 referred to Indonesia and the Philippines as “crocodiles”. The “crocodile theory” necessitated the FPDA.

Sabah claim . . .

Manila felt that the British should first give self-gov’t and independence to Sabah before the territory can consider M’sia. Since that was not done, Manila wanted to press a “territorial” claim to the eastern seaboard of North Borneo, now designated as the Eastern Sabah Security Zone (EssZone) under the Eastern Sabah Security Command (EssCom).

The Philippines gov’t claims that the defunct Sulu Sultanate, under a “sultan” recognised by Manila, had transferred “sovereignty” over EssZone to Manila.

Under a 1939 Declaration, the High Court of Borneo in Sandakan held that nine heirs of the last sultan of Sulu had the “compensatory right” to receive RM5K per annum from North Borneo for giving up the right to collect toll along the main waterdays in southern EssZone and northern EssZone. The Sulu claim has been disputed by Brunei but not in court.

The High Court declined to consider a “territorial” claim by the heirs to the eastern seaboard on the grounds that “sovereignty resides with the people”. It was not possible, in law, for the heirs of the last sultan to own the eastern seaboard territory. There was no proprietory right to territory.

RM5K remain uncollected . . .

Wisma Putra has been paying the RM5K every year to a bank account in Manila since 1963. However, the monies reportedly remain uncollected although it was increased in recent years to RM5, 500. There have been media reports that Putrajaya may have stopped paying the RM5,500 since previous payments remain uncollected.

Sulu rule along the eastern seaboard of Sabah, like all riverine kingdoms in the Archipelago including Malaya, was not territorial. It was confined to collecting toll at the river mouth of the main waterways.

In Malaya by comparison, the British stopped toll collection, converted the rivermouth kingdoms into territorial sultanates. They built roads and railways, laid out airstrips and developed the seaports.

Earlier, by Treaties in 1826 and 1909, the Kingdom of Siam transferred the southern half of the Kra Peninsula, except for Pattani (which includes Narathiwat, southernmost Songkhla, Satun, and Yala) to British Administration.

BREAKING NEWS . . . M’sia must not ‘recognise’ illegitimate gov’t in Afghanistan!

America, Free World, isn’t ‘finished’ with Taliban, Afghanistan.

US troops left Afghanistan after 20 years, undefeated by Taliban.

If the Taliban want to rule Afghanistan, most of it an extension of the Hindu Kush in the Himalayas, it had many opportunities in the last two decades. It showed no interest. Instead, it waited until the US was down to a small number of troops at the Airport, before seizing the gov’t in Kabul by force.

In international law, that’s a big no no. Sovereignty resides in the people. A gov’t must have legitimacy based on the consent of the governed. That can only happen through free, open and fair multiparty elections observed by the international community and the UN.

Already, according to media reports, the Taliban have been unable to occupy Panjshir Valley, largely contiguous with Panjshir Province.

Second Resistance . . .

The National Resistance Front of Afghanistan, also known as the Panjshir resistance and the Second Resistance, has based itself in the province. It’s a military alliance of former Northern Alliance members and other anti-Taliban fighters who remain loyal to the Islamic Republic of Afghanistan (de jure or officially sanctioned).

The resistance has called for an “inclusive government”. That may be the way forward. The gov’t remains disputed between the Administration that just fell in Kabul and the Taliban de facto (unsanctioned) Islamic Emirate of Afghanistan.

The country, throughout history, has never been a nation. It remains a patchwork of tribes occupying provinces run by warlords who have no love lost for the Taliban. It’s not for no reason that Afghanistan is known as the “graveyard of empires”. Geographically, it’s difficult country.

Therein lies the future of Afghanistan. The past, like the past, was no different. It’s the perfect hiding ground for terrorists.

Full wrath . . .

Now that the Taliban, listed by the UN and its member states as a terrorist organisation, has seized Kabul unelected, it will face the full wrath of the international community.

Already, at the behest of Washington, the IMF has withheld funds maintained by Afghanistan with the international monetary body and denied funds requested. The Taliban gov’t of Afghanistan isn’t recognised by the UN and the world.

The World Bank will forget Afghanistan until there’s legitimacy.

Washington, the UN and the international community will probably place Afghanistan under the sanctions regime. It appears there’s no end to the suffering of the people.

The Afghan currency may not even be worth the paper it’s printed on. Smuggling and the black market will enter the economy.

Remembering Vietnam . . .

There may be parallels between Afghanistan and South Vietnam. Both countries fell to “enemy troops” when US troops left.

America isn’t leaving Afghanistan after being defeated by the Taliban. That’s flawed thinking!

In the region, the US won the Kuwait and Iraq wars, levelled Libya and Syria, and has been party to levelling Yemen.

Earlier, during the Bosnia-Herzegovina civil war which was ended by the Dayton Peace Accord on 14 Dec 1995 in Paris, the US launched cruise missile attacks against Belgrade and forced it to vacate the Muslim-majority Kosovo province in Serbia.

America went to Afghanistan for the second time about two decades ago. It rooted out the al Qaeda terrorist network, killed its founder Osama bin Laden who was behind the 911 attacks in the US, and in two months took down the Taliban gov’t which allowed its soil to be used for terrorist activities. The US almost destroyed the poppy fields before easing off.

After mission accomplished, America continued to stay in Afghanistan and kept the peace. It’s true that the right hand in Washington doesn’t know what the left is doing. Yet, America is a country which “researches virtually everything to death”.

Afghanistan went on to hold multiparty elections during the last two decades, experimented with democracy and embarked on nation-building.

No security guarantee . . .

US troops, after having kept the peace in Afghanistan for two decades, could have stayed in the country. However, for reasons unknown, Washington decided to pull out its troops. It didn’t guarantee Afghanistan’s continued security before leaving.

Washington could have warned the Taliban against marching on Kabul but did not do so. It could have provided air cover for the 350K Afghan Army. Again, it failed. Washington only ordered drone strikes in eastern Afghanistan after the Islamic State of Iraq and Syria based in Khorasan Province (ISIS-K) allegedly sent a suicide bomber against US troops and locals gathered outside the wall at Kabul International Airport. ISIS-K and the Taliban are rivals but may not engage in a struggle for political power.

Army melted away . . .

The Afghan Army did not want to fight another bloody war, after 20 years, for the country. It simply melted away before Kabul into the countryside and across the border into neighbouring countries.

The north and west in Afghanistan are mostly Tajik and Hazara country. The same people live across the border.

It’s unlikely that they will allow the Pathan-dominated Taliban from the south and east to occupy their traditional homeland in Afghanistan. The Pathan also make up most of the people in the North West Frontier Province in neighbouring Pakistan.

Ironically, there are more Pathan in India than in Afghanistan and Pakistan put together. Many Afghans have ruled in Delhi, India. Afghanistan was part of India during the reign of Ashoka the Great when Buddhism dominated the region and at other times.

If US troops can remain in Germany and Japan since World War II and South Korea since the Korean War, they could have continued to stay in South Vietnam and Afghanistan.

Vietnam had a happy ending. It has become a strong US ally. France made the grave strategic error of not leaving Vietnam after World War II. Instead, it got the US involved in the Vietnam War for 30 years.

Unlike South Vietnam and South Korea, the prognosis may not be good on Afghanistan.

BREAKING NEWS . . . Agong invites Opposition to form gov’t when IS Cabinet fails in 100 days!

M’sia, now more than ever, needs Cabinet that works.

Prognosis isn’t good on Ismail Sabri’s ‘Cabinet’ without Opposition, subject matter experts.

Newly-minted Malaysian Prime Minister Ismail Sabri may have just signed his own political “death warrant”.

He ushered in #KerajaanGagal (FailedGov’t) 2.0, in his own words, on Fri 27 Aug when announcing a 31-member Cabinet line-up. More on that later!

There are almost no subject matter experts in the Cabinet.

It’s not known whether the National Recovery Council (NRC) and the Special Committee on Covid-19 (SC), both left behind by former Prime Minister Muhyiddin Yassin, will include subject matter experts. Ismail Sabri has invited the Opposition to join both bodies. We don’t know whether the Opposition will take up the invitation.

Already, the brickbats have been coming in thick and fast for the Prime Minister. There have been no bouquets so far, even from the few countries that congratulated him on his Sat 21 Aug appointment.

Performance . . .

The Prime Minister said the Cabinet line-up must perform within 100 days. IS advised Cabinet members that they must work out their own short-term, medium-term and long-term targets.

If short-term targets, presumably within 100 days are not met, patently there’s no hope that medium-term and long-term targets would be met.

M’sians, and the world at large, can only await with bated breath, public announcements on the said targets. Hopefully, IS will announce his personal targets as well.

When the “new” Cabinet fails as expected, Ismail Sabri as well, the Prime Minister would be expected to offer to resign. The new PM, like his predecessor, may probably be unable to decide where politics ends, and where good gov’t, science and data begin.

Alternatively, the Agong can advise the PM to resign, and invite Opposition Leader Anwar Ibrahim by parliamentary convention to form the gov’t. Once the new PM has been appointed, Ismail Sabri stands automatically dismissed. Under Perak case law 2009, the Agong has residual — i.e. reserve powers — being hereditary ruler as sultan.

No legitimacy . . .

Also, the Ismail Sabri gov’t has no legitimacy, having no consent of the governed. His Barisan Nasional (BN) coalition lost GE14 on Thurs 10 May 2018 after 61 years uninterrupted in power. Agong cannot be a party to illegalities i.e. the people losing their sovereignty to a handful of people in Umno, the lynchpin in BN, being behind unelected gov’t.

True, under Article 39 — Executive authority of the Federation — the Agong can delegate executive authority under the circumstances, including Special, detailed therein.

Clearly, such authority cannot be delegated to a Member of Parliament with no consent of the governed. If civilian gov’t fails, the Agong can delegate executive authority to a National Operations Council, headed by a Director of Operations, as in 1969 after disturbances which began on May 13 and lasted at least a week in Kuala Lumpur. The NOC can function until GE15 in 2023 since both sides of the political Divide don’t have a majority.

Leadership . . .

Ismail Sabri, and predecessor Muhyiddin, became Prime Minister because both sides of the political Divide allowed the Agong to initiate a resolution of political conflict and constitutional crisis. Therein lies the spirit of the law on Agong playing a leadership role. If read together with the letter of the law — read Constitution — Agong remains above the fray.

Musical chairs . . .

M’sia, unlike the rest of the world, allows the riff-raff — for want of a better term — to squat on the brightest and best under various guises, preventing the latter from leading the way for all.

The thinking, evident in Ismail Sabri’s Cabinet, has seen a make-over of predecessor Muhyiddin Cabinet which has failed for 17 months, since Sun 1 Mar last year. The Muhyiddin gov’t went viral in the social media as #KerajaanGagal.

The game of musical chairs, presided over by Ismail Sabri, has ushered in #KerajaanGagal 2.0 even before being sworn in on Mon 30 Aug. The Agong had decreed the Cabinet must be formed before Merdeka (independence) Day on Tues 31 Aug.

The head of state had also decreed that “the winners can’t take all, the losers lose all” and called for a “unity Cabinet”. That did not happen.

Muhyiddin mooted the idea of an all-Malay, all-Muslim, all-Bumiputera (Malay and Orang Asal i.e. indigenous) gov’t in Putrajaya before he was appointed Prime Minister on Sun 1 Mar last year.

Nine non-Malay Ministers . . .

Of the 31 Full Ministers in the IS Cabinet, only nine are non-Malay including Orang Asal (indigenous) and Muslim from the Borneo territories. The non-Malay form 49.6 per cent of the population (2010 Census).

The nine non-Malay Ministers . . . Maximus Ongkili (Sabah and Sarawak Affairs), Ronald Kiandee (Agriculture and Food Industries), and Rina Harun (Women and Family) from Sabah; Fadillah Yusof (Works), Wan Junaidi Tuanku Jaafar (Law), Nancy Shukri (Tourism, Arts and Culture), and Alexander Nanta Linggi (Domestic Trade and Industry) from Sarawak; and Wee Ka Siong (Transport), and M. Saravanan (Human Resources) from Malaya.

It’s not a must that the Cabinet must reflect the demography 100 per cent, but there’s a case for having at least another three non-Malay Ministers to tap greater talent.

According to the letter of the law, cited in the Istana statement, Article 43 (2) (a) of the Federal Constitution gives the Agong the power to appoint a Prime Minister.

Article 43(2) (b) provides for the appointment of the Cabinet as well.

Article 43(4) covers a Prime Minister who ceases to have majority in Parliament.

Non-Compliant . . .

The Federal gov’t has allegedly been non-compliant on the Malaysia Agreement 1963 (MA63) and Borneo rights since 16 Sept 1963, Malaysia Day.

There’s a lack of leadership in Sabah, and S’wak, on MA63 and Borneo rights. There’s no political will in Putrajaya.

The Malay term, under Article 160(2) of the Constitution, covers Muslim in Malaya governed by the Merdeka cutoff deadline, 31 Aug 1957, for classification as a form of identity in law based on the Malay language, Islam, culture, customs and traditions.

The Constitution, based on the rule of law, remains colour-blind.

Except for descendants, Muslim after Merdeka in Malaya and those in the Borneo territories don’t fall under the Malay classification.

BREAKING NEWS . . . Opposition meet with new PM Ismail Sabri ‘much ado about nothing’ . . .

Opposition meet with new PM Ismail Sabri ‘much ado about nothing’.

No shame in ‘unity Cabinet’, half the posts ‘belong’ to Opposition.

“Much Ado About Nothing” is a comedy by William Shakespeare, thought to have been written in 1598 and 1599, according to various sources in cyberspace.

The play was included in the First Folio, published in 1623.

The title’s play on words references the secrets and trickery that form the backbone of the play’s comedy, intrigue, and action.

The title of Shakespeare’s play keeps the meeting that three Pakatan Harapan (PH) leaders had on Wed 25 Aug with newly-minted Prime Minister, Ismail Sabri, in a nutshell.

The one hour meet was “Much Ado About Nothing” unless IS remains in immediate danger from his own coalition and PH made a “strategic” to “save” him without putting too much pressure on him.

Opposition Leader Anwar Ibrahim, in setting the tone for the meeting, recalled perhaps “tongue in cheek” that most of the parties in the ruling Barisan Nasional (BN) Plus have taken an extreme “no Anwar, no DAP in gov’t” policy.

Roles for Opposition . . .

The meeting was called in the wake of the Prime Minister offering to include the Opposition in the National Recovery Council (NRC) and the Special Committee on Covid-19 (SC).

The Opposition did not mention the offer during the meeting. DAP, based on media reports, appears willing to consider joining the NRC and the SC.

PH did not ask for Opposition lawmakers to be included in a “unity Cabinet” including a senior Ministerial post for the Opposition Leader. Anwar told the media after the meeting that he doesn’t want a senior ministerial post.

There’s no shame in accepting a “unity Cabinet”, albeit without a “unity gov’t”, considering that the ruling Barisan Nasional (BN) Plus gov’t has only 114 seats in Parliament vis-a-vis 106 seats held by the Opposition. It can be said that half the Cabinet posts “belong” to the Opposition.

No legitimacy . . .

BN lost GE14 on Thurs 10 May 2018 to PH. In law, the BN+ gov’t has no legitimacy as it doesn’t have the consent of the governed. PH participation in a “unity Cabinet”, as decreed by the Agong, would restore sovereignty to the people.

In retrospect, in appointing IS as the 9th Prime Minister, the Agong decreed that “the winners can’t take all, the losers won’t lose all”.

Briefly, the Opposition Leader pledged during the meeting that the PM would not have difficulties with the looming confidence motion in Parliament if the gov’t pursued pro-rakyat (people) policies and managed the pandemic well.

If IS would not have difficulties with the confidence motion, at least from PH which has 89 seats, it serves no purpose if the motion is tabled. The Agong decreed “the Prime Minister must put his majority to the test in Parliament through a confidence motion as soon as possible”.

Confidence and Supply . . .

IS would have felt doubly assured if PH had offered a Confidence and Supply Agreement (CSA). There was no such luck. It can still happen as there’s much support within DAP for it. Amanah will come along. Anwar’s PKR may not support a CSA. In that case, DAP may not decide to swim or sink with Anwar, if not PKR.

It’s not clear what the Opposition meant on the two aspects viz. pro-rakyat policies and managing the pandemic well. There were no details during the one hour meeting with the Prime Minister.

The demands imply that the predecessor Muhyiddin Yassin gov’t did not focus on the two aspects. It was the previous gov’t that set up the SC, had over 50 per cent of the population fully vaccinated by Mon 16 Aug, and set up the NRC. In fact, Labuan has achieved almost 100 per cent double vaccination, Kuala Lumpur over 85 per cent.

Living with the virus . . .

The vaccination rate in M’sia allows the country to start living with the virus as in S’pore, Israel and the UK, among others.

Of course, there are other countries like Australia (24 per cent fully vaccinated) and New Zealand (20 per cent fully vaccinated) which may have other ideas on managing the pandemic.

For the sake of comparison, about 71 per cent of the population in the US has been fully vaccinated.

Muhyiddin’s conditions . . .

The joint statement by the trio was partly a copy paste version of “Muhyiddin’s conditions” before casting Perikatan Nasional’s (PN) 50 votes for IS on Fri 20 Aug at the Istana. The joint statement mentioned strengthening Parliament, judicial independence and institutional reforms for governance.

Muhyiddin wants the Cabinet to be free of lawmakers facing charges in court.

Further, the PN wants the new Prime Minister to abide by the Doctrine of Separation of Powers, respect the independence of the judiciary, uphold the Federal Constitution and run the Cabinet on the consensus principle i.e. no voice against.

7-Point Plan . . .

Both IS and PH did not discuss the 7-Point Plan that Muhyiddin offered the Opposition before resigning on Mon 16 Aug.

Briefly, these have been reported as Senior Ministerial perks for the Opposition leader, anti-defection Bill, lawmakers get equal allocations, balanced representation in Special Parliamentary Select Committees, voting rights for those who have reached 18 years, discussion of Bills with the Opposition, and GE15 by July 2022.

It has been reported that there’s significant support within DAP for the 7-Point Plan. The party, and Amanah, can still make it part of a CSA with IS. If DAP, with 42 seats in Parliament, had accepted the 7-Point Plan before Mon 16 Aug, Muhyiddin would not have resigned as Prime Minister.

Cases in court . . .

There’s considerable fear in Opposition circles, and the social media, that the Umno Supreme Council would prevail on the Prime Minister on charges facing several Umno leaders in court.

Under this nightmare scenario, the Attorney General would ask the court concerned to vacate the dates on the grounds that “there have been some new developments on the case”.

If so, the court should ask for the details on the so-called new developments.

If the AG can’t answer, the court should proceed with the case.

If the new developments involve a letter of representation by the accused, the court will fix a date to hear the letter i.e. if the AG is going to accept it.

Generally, if the AG accepts a letter of representation from an accused, he would recommend DNAA (discharge not amounting to acquittal). The court can either accept the recommendation or substitute it with DNA (discharge and acquittal) if it feels that “it would be unfair to have the charges hanging over the head of the accused”.

Under Article 145 (3) of the Constitution, “the Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native court or a court-martial”.