Malaysiakini barking up the wrong tree on ‘Malay’ citizenship

COMMENT / ‘Malay’ concept deserves clarification.

Terence Netto is ventilating his ignorance on law, Constitution, Immigration, citizenship and the nation-state.

The concept of Malay nationalism was created by Malayalee Muslim from Kerala — southwest India — in Singapore. All nationalism are defined by Opposition. Malay nationalism opposed Chinese economic domination of Singapore and Malaya.

Read “Origin of Malay Nationalism” by Professor William Roff, Universiti Malaya and Australian National University.

The Malayalee set up the first Malay printing press and newspaper in Singapore. They started Utusan Melayu and Utusan Malaysia.

An Utusan Melayu Editor, Yusuf Ishak, became the first President of Singapore.

His brother, Aziz Ishak, was Agriculture Minister in Malaya under Tunku Abdul Rahman. Tunku sacked him after money meant to buy chicken feed and chicken allegedly were found missing.

There was another brother, Rahim Ishak, in Singapore. He may have been a Minister in Singapore. I stand corrected.

As late as the 1890s, 85 per cent of the Muslim communities in Malaya and Singapore were immigrants or the immediate descendants of immigrants.

The rhetoric and polemics on Malay citizenship is nothing but rotten Malay politics. Netto ignored this point.

Instead of harping on Malay citizenship, Netto should advise the gov’t to do away with the Definition of Malay in Article 160(2). This is an aberration in law, artificial construct, bad law.

The 2nd Prong — not race — and 1st Prong (implying race) contradict each other.

There’s case law which states that the Malay Definition in Article 160(2) is not about race but anthropology. If true, Islam which came from outside the Archipelago should not be mentioned in the Definition.

Singapore has removed Islam from its Definition of Malay in Article 152. Unlike in Malaya, a Malay in Singapore can leave Islam and still remain Malay.

Again, given the case law, people originating from outside the Archipelago — Indian, Arab, Others — should not be given Malay MyKad and listed as Malay. So, Mahathir for example, should be stripped of his Malay MyKad.

The 2nd Prong and 1st Prong should be read together to prevent those not eligible from getting Malay MyKads. Yet, many people who are not eligible, including Zahid Hamidi, are holding Malay MyKads. His MyKad should read Lain Lain.

The Malay Definition is confined to Singapore and Malaya. Yet, there are people in Sabah not originating from Singapore and Malaya but holding Malay MyKad. Check the MyKad held by Muslim Orang Asal and the PTI from the Philippines, Indonesia, Timor Leste, Pakistan, Bangladesh and India.

Bad law does not “exist”, and if it exists, it automatically ceases to exist as if it never existed. The court should rule on this issue as bad law remains “valid” until ruled against by the court.

The rule of law is the basis of the Constitution.

The Constitution, being colour-blind, cannot go against itself. If it goes against itself, the infringement is null and void by the extent of its inconsistency with the superior law, the Constitution. Again, only the court can declare law, perhaps in response to an Originating Summons.

An OS provides Declaration but what’s the Remedy? Declaration without Remedy is worse than useless!

However, the Declaration will remove Malay from Article 153.

Article 152, Bahasa Kebangsaan, will remain as Malay is the lingua franca of the Archipelago. It’s not the language of a race.

The gov’t should also do away with forms which have four boxes i.e. Indian, Chinese, Malay and Lain Lain. Netto can make a movement on this issue and write about it in malaysiakini. He can help make a difference for the better for once in his life. We pass this way only once.

Article 161A and the Aboriginal People’s Act 1954 are not about race but ancestral and historical property, NCR, of the Orang Asal in Sabah and Sarawak and the Orang Asli in Malaya.

The Orang Asal and Orang Asli are also covered by Articles 5, 8 and 13.

Sabah and Sarawak belong to the Orang Asal.

Malaya belongs to the Orang Asli. The first people in Malaya were the Negrito (Semang). They came from the mountains of Kerala, southwest India, 40K years ago.

The Negrito in Kerala came from east Africa 70K years ago.

As evident from the Definition, Malaysia is not tanah Melayu. It’s a misnomer to call gov’t reserve land in Malaya, gazetted in Orang Asli country, as tanah Melayu. Reserve land is untitled and can be degazetted to return to the Orang Asli or used for public purposes.

Having said that, what’s the Melayu concept of citizenship? In law, there’s no such thing.

Citizenship in Malaysia is based on the Federation of Malaya Independence Act 1957 and the Malaysia Agreement 1963 (MA63).

In Malaya, British subjects exchanged their colonial status in the Empire for Malayan citizenship. The Immigration Act 1959 came into play in Malaya. It was amended in 1963 to cover Sabah and Sarawak.

Citizenship goes together with the Immigration Act.

Indians, Chinese, Others and the sultans in Malaya were British subjects on the eve of Merdeka on 31 Aug 1957.

Malay were not British subjects but subjects (slaves) of the sultans even before the colonial authorities created territorial states out of river mouth toll collecting fiefdoms or kerajaan sungei.

Malay were not citizens in Malaya. There was no Immigration Act in Malaya before 1959.

So, on what basis were Malay politicians harping on Malay citizenship?

Did Malay in Malaya become citizens after Merdeka or were they simply handed blue ICs like Bapa Projek IC Mahathir gave the PTI in Sabah to enter them in the electoral rolls and bring down the PBS Orang Asal gov’t?

In North Borneo and Sarawak, the people were British subjects for a brief period i.e. after World War II until Malaysia Day, 16 Sept 1963.

Ironically, quite a number of Orang Asal in Sabah and Sarawak are not citizens. They don’t have birth certificates.

Some 350K Indians in Malaya, ex-British subjects, may be stateless people. The Federal court recently declared law on stateless people.

Those who have children with Muslims in Malaysia have difficulties in securing birth certificates if they don’t convert. By law, anyone born in Malaysia must get a birth certificate whether born at home or the hospital. This includes PTI and other foreigners.

If Muslim-non-Muslim couples don’t marry, birth certs for the child will be issued to the Malaysian mother. She must tell the JPN that the father of her child is unknown. The child will carry the religion of the mother.

Citizenship in Malaysia, under operation of law, is based on jus sanguinis (blood) i.e. descent from a citizen. A citizen can be born anywhere in the world.

Malaysians born outside the country must have their birth registered at the nearest Malaysian, British or Commonwealth mission, Embassy or High Commission, within three months to be eligible for citizenship.

If the father is a foreigner, there may be difficulties unless the Cabinet decides on a case by case basis. That’s a separate story making its way through the court.

Malaysian women who have children fathered by foreigners are advised not to marry their partners if they want Malaysian citizenship for their children. They should also give birth in Malaysia.

The birth certificate should state “father unknown”. Mothers should tell JPN that they don’t know the father of their child.

Trust me on this lah!

After the children get blue ICs, they can marry the father of their children. Then, he can “adopt” his children so that his name will be inserted in their birth certificate.

So vaanderrphul loh! Malaysia Boleh mah!

There’s no jus soli (birthplace) citizenship in Malaysia.

Of course, others eligible for citizenship can apply to be naturalised or registered. In doubtful cases, Article 30 decides. The gov’t can issue a certificate of citizenship under this Article.

Netto should have consulted me, being cousin brother-in-law, before pontificating sanctimoniously in malaysiakini like our ex-colleague in Nst, Phlip Rodrigues, another sad case in journalism. He wrote the most awful piece yesterday on America and was universally condemned by subscribers.

To add insult to injury, malaysiakini has re-hired him, perhaps a great rescue from poverty. Obviously, he discovered quickly like Netto that it’s not possible to live on fresh air, water and sunshine.

Read further here . . .

Britain finally seized Malaya from Siam in 1909.

Author: fernzthegreat

Joe Fernandez holds a honours degree in management, majoring in economics, and has opted from academia in law to being a jurist. He was trained professionally on the job as a journalist. He's a longtime Borneo watcher, keen on the history and legal aspects of Malaya's presence in Sabah and Sarawak. He teaches the English language privately and has emerged as a subject matter expert in public examination techniques.

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