Malay not ‘Bumiputera’, court can declare the law!

https://www.malaysiakini.com/news/571148

Ironically, such children may only be Orang Asal if not born in Sarawak or, if born in Sarawak, the father is Native.

https://www.malaymail.com/news/malaysia/2021/04/18/baru-bian-children-from-mixednativity-marriages-should-be-recognised-as-sar/1967366

LETTER TO EDITOR . . . Set public record straight on mixed children with one Native parent.

MIXED CHILDREN . . .

The Chief Secretary, also Cabinet Secretary, did issue a Policy Circular in either 2010, 2011 or thereabouts, in Nov, on the status of children from marriage between Natives and non-Natives.

I believe the policy circular, i.e. administrative law, was gazetted. A gazette is not law but merely a gov’t announcement.

A gazette cannot be challenged since it’s not law. The court of law is only about law.

Tribunals, although called court, are not courts of law.

The process of gazetting and/or the policy circular can be challenged, by those with locus standi/legitimate expectations, by judicial review within three months. I never read anywhere about this — i.e. judicial review — being done.

Briefly, under the policy circular, the onus was on the children of mixed marriages to decide whether they want Native status or remain non-Native.

To the best of my knowledge, Immigration in Sabah and Sarawak complies with the policy circular, if the mixed child is accompanied by the Native parent, with or without the necessary corrections being made to the MyKad (Malaysia Kad Akuan Diri or Identity Card).

National Registration Department (NRD) Sabah complies with the policy circular.

Once a mixed child opts for Native status, under the policy circular, he or she has to turn up at NRD Sabah accompanied by the Native parent.

They would have to fill in a simple form to “correct” the particulars on the chip in the MyKad from non-Native to Native.

A new birth cert will also be issued, within two weeks, before the MyKad is “corrected”. To the best of my knowledge, the birth cert never used to state the race of the child.

NRD Sarawak reportedly complied with the principle in the policy circular long before it was issued but only the children of Native fathers and non-Native mothers were routinely classified as Native in the MyKad.

I don’t know whether this approach has since changed as the law, Article 8 Federal Constitution, does not allow for discrimination.

NRD Sarawak used to refer Applications from children born of a non-Native father and Native mother to the Native Court for determination of the status. Invariably, the Native Court will reject the Application on the grounds that “mixed children are also Native but only if drawn exclusively from Native parents”.

Ironically, such mixed children of non-Native fathers and Native mothers may be classified as Orang Asal (Indigenous) if not born in Sarawak. Putrajaya and NRD Sabah would classify such children as Native in the MyKad. Example: Lain Lain (Iban etc).

NRD, based on Federal gov’t forms, has only five categories in the MyKad for “race” viz. Malay, Chinese, Indian, Lain Lain (Orang Asal categories) and Lain Lain.

The Constitution is colour blind.

The Constitution is not law, but as the ultimate political document for Malaya, it has force of law and emerges as the supreme law of the land. Conventions, the working of the Constitution, is also not law. No court will hear Applications on conventions.

Malaya, having a written/uncodified Constitution, is ruled by constitutional supremacy, and not ruled by Parliament as in the UK.

The Orang Asli in Malaya are covered by the Aboriginal People’s Act 1954.

The Definition of Malay in Article 160(2) is not race but a form of identity confined to Muslim in S’pore and Malaya who were born or domiciled in the two territories before Merdeka, 31 Aug 1957. This is tricky! In law, legislation cannot be retrospective.

There’s case law stating that Malay in Article 160(2) is not race but anthropology. Let’s not go there. The case law may not hold water on anthropology. That’s another story for another day.

Bahasa Melayu, stated in Article 152 as bahasa kebangsaan (Johor-Rhio-Lingga version), may not have been originated by a race. Indeed, the Malay language was not originated by any race but created as lingua franca for the Archipelago by Hindu and Buddhist from India. Malay was based on a Cambodian dialect, Tamil, Sanskrit and Pali.

Malay in Malaya have no NCR (native customary rights) land.

They have gov’t reserves — the misnomer being Malay reservation land or tanah Melayu — created by the British in Orang Asli country by gazette. Such land is untitled and can be degazetted for public purposes or to return to the Orang Asli.

Malay in Malaya were subjects of the sultans.

The British in Malaya created the sultanates, as territorial states, an extension of the river-mouth dwelling toll collecting kerajaan sungei.

The sultans, Indians, Chinese and others were British subjects who exchanged their status for Malayan citizenship under the Federation of Malaya Independence Act 1957.

The question of Malay agreeing to give citizenship to Indians and Chinese does not arise. Citizenship was by the Federation of Malaya Independence Act 1957 and the Federal Constitution.

There’s no evidence that Malay became citizens after Merdeka, i.e. 31 Aug 1957, in Malaya.

According to the Origin of Malay Nationalism, by William Roff, 85 per cent of Muslim in Malaya in the 1890s were immigrants and descendants of immigrants.

Orang Asli in Malaya have NCR land.

In law, based on NCR land, Sabah and Sarawak belong to the Orang Asal, Malaya to the Orang Asli.

Article 161A for Borneo states that only the Indigenous people in Sabah and Sarawak are Native, and vice versa, i.e. that such Native people are Indigenous.

Orang Asal (Indigenous) is not about race but the ownership of ancestral and historical property, NCR land, under Adat i.e. customary practices which have force of law. Adat is the first law in international law.

Of course, heritage land is held by people who habitually speak certain dialects and languages and practise related culture, customs and traditions. The Constitution does not go into DNA or geographical origin.

NCR land is heritage by the right of first settlement, and working the land, in the emptiness and vastness of a geographical expanse bound by water, jungle and mountain, long before the advent of modern gov’t.

I believe there’s law in Sarawak, perhaps a one time law, which states that one can be Native for the purpose of owning NCR land, but without being a Native in law. I don’t know how that works. I stand corrected.

Often, difficulties can arise in the transfer of NCR land.

One lady in Sabah, listed as Chinese in the MyKad, was given NCR land by her “adopted” mother, an Orang Asal. The Land Office registered the land transfer in her name. The “adopted” mother has moved on. It was the “adopted” mother who took her to NRD to get the MyKad.

The lady tried to change her MyKad to Orang Asal and was rejected by NRD. The Dept asked her to produce a letter from the Majlis Hal Ehwal Anak Negeri on her Native status. The NRD rejected her “adoption” Agreement as not valid. Her late adopted father was Chinese.

Her biological mother was Orang Asal (Dusun), biological father was Chinese. Both have moved on.

She worries about not being able to pass the land to her children, all classified as Chinese. Her late husband was Chinese.

Majlis Hal Ehwal Anak Negeri in Labuan and Kota Kinabalu considered her case and even gave letters confirming Native status. NRD said the certification letters were not good enough. The Dept wants a Native Certificate. Such a certificate needs clearance from the Native Court. After the gov’t stepped in, the Native Court no longer considers Applications for Native Certificate. The gov’t uncovered widespread fraud in the issuance of Native Certificate.

In the most notorious case, the state assembly stripped lawmaker Jimmy Wong of his Native Certificate, allegedly obtained fraudulently from the Native Court.

Perhaps the lady can approach the Mobile Court. It can probably direct NRD to give her an Orang Asal MyKad.

Sino-Dusun, Sino-Kadazan, and Sino-Native are no longer listed in the MyKad.

These categories are not considered Native in law.

The Sino in Sabah are hysterical over the issue. They will never be considered Native in law as long as they insist on retaining the Sino label. Choose: either Chinese or Native, not both bah!

Those who insist on retaining both labels should get into leaky boats and head for tongsan. Sabah and Sarawak are not Chinaman’s places. Chinaman’s place Saanaaa, as the Om would say, near the Great Wall. Jangan main dengan api!

The question that arises, in law, is whether the Land Office would register NCR land passed by a Native parent to his or her mixed child. If the Land Office refuses to register such land under the mixed child, the Native parent can give Power of Attorney (PA) over such land to the recipient.

There’s no PA in Sabah. So, there being lacuna (gap) in law, they use the PA law from England. Apparently, for reasons unknown, the PA from Malaya cannot be used in Sabah.

I am not sure about PA in Sarawak.

For Sarawak, various local dialects and languages are listed as Indigenous and Native.

For Sabah, there’s no such listing in the Federal Constitution.

The Native Interpretation Ordinance in Sabah lists the Indigenous people as Native.

By customary practice, and anthropologically, this is a reference to the Dusunic and Murutic groupings in Sabah. Both are Dayak Borneo. The Dusunic grouping includes Kadazan — i.e. urban Dusun — who are better known in Malaya as they generally appear in the media. Many people have accused me of “inventing” the term “urban Dusun”. They claim the Kadazan are not Dusun, considered somewhat a derogatory term before Malaysia, to imply backwardness bla bla bla.

NRD should not list all Dusun in the MyKad as Kadazan. Kadazan can be Dusun. All Dusun cannot be Kadazan.

In anthropology, there are only two Indigenous groups in Sabah viz. Dusunic grouping and Murutic grouping.

The Murut in Sabah and Sarawak are not the same people.

The Murut in Sarawak or Lun Bawang and the Lun Dayeh in Sabah are one and the same people.

Unlike in Sabah, the Lun Bawang consider Murut a derogatory term, implying “crudeness”, “rough” and “backwardness”. Anyone who refers to the Lun Bawang in Sarawak as Murut will get a black eye. Lun Dayeh in Sabah don’t call themselves Murut.

Besides the Indigenous people, the Native Interpretation Ordinance in Sabah lists various communities from neighbouring regions even from as far away as S’pore, Malaya and Indonesia, and neighbouring Sarawak, as Native “subject to Immigration restrictions”.

Immigration restrictions came into force on 16 Sept 1963.

Hence, except for those from Sarawak, the communities in Sabah from neighbouring regions cannot claim Native status. In short, the PTI (pendatang tanpa izin or illegal immigrants) in Sabah from the Philippines and Indonesia cannot claim Native status.

Already, the PTI are lawbreakers, either having entered illegally or overstayed after entering legally. They can exit by the backdoor and enter legally i.e. by the front door. Alternatively, the onus is on them to use vaccination certificate as “proof of identity” in law.

If PTI are given MyKad, they will be able to vote, and the people of Sabah will lose their sovereignty to foreigners.

As it stands, many PTI may have MyKad entered in the electoral rolls but missing from the data bank at NRD.

On Sept 26 last year, during the snap Sabah elections, the Home Ministry announced in the media that NRD officers would be stationed at polling stations to prevent the PTI from voting. The PTI party lost the election.

If Shafie Apdal went to court on Sept 26, it would probably declare him the lawful Chief Minister, based on the Definition of majority in the Sabah Constitution.

However, that would mean that he was not the lawful Chief Minister on 12 May 2018, as alleged by ousted Chief Minister Musa Aman on 12 May 2018, on 7 Nov 2018 in the High Court of Borneo, subsequently in the Court of Appeal, and as per the 1 Sept 2020 majority decision by the Federal court.

Musa Aman withdrew the case in the Federal court based on his opinion that the GRS gov’t was legitimate. Opinion is not law. Only the court can declare law.

Also, there were ten constitutional questions before the Federal court. Human rights advocate and Borneo rights activist Daniel John Jambun has pledged to pursue the questions by Originating Summons (OS).

When MyKads held by PTI are referred by the court to NRD for verification, as evident from media reports, the standard answer: “tiada dalam sistem”. The court, probably knowing what’s going on, probes no further.

Read the Royal Commision of Report (RCI) Sabah on illegal immigrants.

Banks have MyKad readers. These tiny machines can’t read the chip, they can only verify whether a MyKad is physically a genuine document. The Banks won’t know whether the holder is eligible to get the MyKad and entitled to hold it.

Perhaps the PTI who are stateless as per case law in the Federal court can obtain a Certificate of Identity from Immigration, based on the vaccination cert, to facilitate travel in and out of Sabah including to Brunei and S’pore, and travel to Sarawak and Malaya.

In law, the Native Interpretation Ordinance of Sabah is null and void to the extent of its inconsistency with Article 161A.

Ordinance is not law but “colonial” decree — Sabah, like Sarawak, did not become a British colony until after World War II — serving as administrative law. Administrative law is not law at all but gov’t policies in action. Administrative law can be challenged by judicial review.

Sabah, before the Japanese Occupation, was run by the British North Borneo Chartered Company. That was like outsourcing colonialism by Royal Charter.

Sarawak was ruled before the Japanese Occupation by the Brooke Dynasty which initially “acquired” 3, 000 sq mls around Kuching from the Brunei sultan. The Brooke Family steadily expanded Sarawak until Brunei was almost swallowed up. The British stepped in and saved Brunei from Sarawak. Brunei still claims that Limbang, which separates the sultanate in two, belongs to it.

In Sabah and Sarawak, Native status has almost no meaning in law if one does not have NCR land. What kind of Native does not have Native land? Also, many Indigenous people in Sabah and Sarawak, having no birth certificates, may not be citizens. The media has reported this phenomenon from time to time.

Of course, the Natives without NCR land can still benefit if they are citizens from the special position under Article 153 in four areas viz. intake into the civil service, training opportunities by way of intake into institutions owned by the gov’t, gov’t scholarships, and opportunities from the gov’t to do business.

The special position in the 1st Prong of Article 153 is about a reasonable proportion subject in the 2nd Prong to the legitimate interests of “non-Malay” being safeguarded.

There are no special privileges in the Constitution. There’s Equality under the law. No one is above the law.

Article 153 has been expressed in the New Economic Policy (1970 to 1990).

The NEP has a two-pronged approach: the elimination of the identification of race with economic functions and place of residence; and Bumiputera — an umbrella term covering Orang Asal (Indigenous) and Malay — to own, control and manage 30 per cent of the corporate wealth of Malaysia by 1990. Corporate wealth refers to publicly listed companies.

In law, the Malay in Malaya are not Bumiputera. Of course, only the court can declare law.

Opinion is not law.

On a separate but related matter, a child will get a Sabah or Sarawak MyKad if sponsored by a parent who is Sabahan or Sarawakian, as the case may be.

The Sabah MyKad used to carry the letter H. The letter has since been dropped. Those with the old ICs have the number indicated in the MyKad as Hxxxxxx.

If a Sabahan doesn’t have an old IC and was not born in Sabah, how do we know he or she is Sabahan? Many non-Sabahan too have a Sabah address in the MyKad, are registered to vote in the state and own their residential property.

There’s case law by Judge Ian Chin on “strong Sabah connections”. He listed three criteria for admission to the High Court of Borneo viz. having a Sabah address in the MyKad, registered to vote in Sabah, and owning a residential property in Sabah.

The judge did not mention the MyKad indicating permanent residence.

The Federal court, not so long ago, referred to the Malaysia Agreement 1963 (MA63) and denied attempts by lawyers in Malaya to handle cases originating from Sabah or Sarawak and heard in the superior courts in Putrajaya.

Sabah and Sarawak have the PR category, similar to the M’sian permanent residence i.e. red MyKad. The Sabah PR is listed as H, similar to Sabah MyKad and passport. Sarawak PR is listed as K, similar to the Sarawak MyKad and passport.

Sarawak MyKad carries the letter K. I am not sure whether the letter has since been dropped.

The middle two numbers in the MyKad will indicate the state where he or she was born, and it may not be Sabah or Sarawak.

In law, it’s an offence to carry a MyKad which does not list the current residential address of the holder. The ordinary cop on beat duty has prerogative and discretionary powers on the matter after examining a MyKad that’s not in order.

If the residential address changes, it must be reflected in the MyKad and the electoral rolls, if eligible to register.

I don’t know whether the chip in the M’sian passport carries the residential address of the holder.

Read further here . . .

BREAKING NEWS . . . REVERSE British Transfer of North Borneo, S’wak, IMMEDIATELY for self-determination!

https://fernzthegreat.wordpress.com/2021/04/17/breaking-news-reverse-british-transfer-of-north-borneo-swak-immediately-for-self-determination/

No one in the world can beat my Blog pieces on the REVERSAL, I am the only one thinking about it.

https://dayakdaily.com/abdul-karim-term-sarawakian-contravenes-the-federal-constitution/

Any citizen can stand for election in S’wak. EC decides.

https://www.dailyexpress.com.my/news/161524/passed-bill-on-who-can-become-a-yb-in-sarawak/

This law is null and void to the extent of its inconsistency with the superior law, the Federal Constitution.

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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