M’sia Amnesty for PTI on late registration birth certs possible!

M’sia can offer Amnesty to illegals with late registration birth certs.

In 1965, Parliament gave Amnesty to thousands of people in Malaya who acquired citizenship although they were not eligible.

Warisan : Thanks But No Thanks

LETTER TO EDITOR . . . The issue in the above link was not about Perikatan Nasional (PN) but the coalition in Putrajaya led by it i.e. PN Plus.

PBS, Umno, MIC, MCA, PBRS and GPS, all in the Federal gov’t, are not in PN which agreed that Bersatu could hold the PM’s post. Bersatu leads PN.

Umno, MIC, MCA and PBRS are in Barisan Nasional (BN) which probably still has the backing of the Malay-dominated gov’t sector in M’sia and Sabah and S’wak.

Siambun was “splitting hairs” because Jeffrey Kitingan and Ongkili mentioned PN.

That’s being disingenous and playing politics.

Minor mistakes in statements can be “disregarded”. It’s the spirit that matters.

The proof of the pudding is in the eating.

What’s the point of holding elections, if every party in the Opposition wants to frog to the gov’t? This issue should be addressed.

MA63 . . .

Politicians in Sabah and S’wak have been flogging the Malaysia Agreement 1963 (MA63) to death since 16 Sept 1963, Malaysia Day.

The reality is that there’s a lack of leadership in Borneo on the issue and no political will in Putrajaya. In fact, the onus is on the territorial assemblies in Sabah and S’wak to Invoke Article VIII of MA63 for a new form of self-determination.

Article 1(2) . . .

The Amendment to Article 1(2) fell apart because GPS in S’wak insisted on including the words “pursuant to Malaysia Agreement 1963 (MA63)”.

AG Tommy Thomas advised de facto Law Minister V. K. Liew not to include the said words “to avoid complications”.

The AG did not elaborate on “complications”.

Liew briefed the press on the matter. The press did not ask him about “complications”.

It was Parliament which amended Article 1(2) on 13 July 1976.

It does not make sense to amend the Article again after GE14 to restore it to the pre-13 July 1976 position.

The Federal court should decide on Article 1(2).

M’sia, having a written/codified Federal Constitution unlike the UK, was ruled by constitutional supremacy, not by Parliamentary supremacy.

Alternatively, Parliament could have decided by Motion — not Bill — and by simple majority, that 13 July 1976 was a “grave error” and does not stand.

The Federal court can decide on the Motion. It may decline to rule since it’s not law. In that case, the Motion stands.

The sovereignty of Parliament in M’sia, in the UK too, is confined to its five year term. No Parliament can be bound by a previous Parliament nor bind a future Parliament.

Malaysia Constitution . . .

As evident from case laws in the High Court of Borneo and the Federal Court, Sabah and S’wak are governed by the unwritten/uncodified Malaysia Constitution. It comprises the constitutional documents on M’sia and the Federal Constitution.

PAS in Sabah . . .

Nominated territorial seats, in law, are not meant for parties like PAS. The court can decide on a point of law.

On 10 May 2018, I pointed out to Jeffrey that Star should be given some nominated territorial seats as well. I was willing to accept a seat to represent a minority group which does not hold an elected seat in the territorial assembly.

He agreed.

Earlier, I advised him twice against leaving PKR. I could not stop him the third time. PKR was formed to stop Mahathir from getting away with anything.

When Musa Aman went to see the Governor, Star was not on the list of nominated territorial seats.

Apparently, the Governor rejected MA’s proposed names. It’s not clear whether the names tendered complied with the intention in the Sabah Constitution on nominated territorial seats.

There were rumours, reported in the media, that MA pulled out a gun and threatened to shoot the Governor after the proposed names were rejected. I believe that a police report was lodged on the alleged threat. MA may have “fled” to the UK because of this incident. I stand corrected.

In the heat of 12 May 2018, MA could have ended up behind bars. Again, I stand corrected.

The majority decision on Sept 1 last year by the Federal court makes clear that the Governor, not being sultan, has no residual powers.

The only discretionary powers he has are stated in the Sabah Constitution.

7/11 ruling . . .

The Perak case law was not applicable to Sabah, and presumably S’wak, Malacca and Penang too. The judge from S’wak was wrong on the 7/11 (7 Nov 2018) ruling which upheld the 12 May 2018 change of gov’t.

It’s rumoured that CJ Richard Malajun, who often lectures the court and lawyers on the rule of law, “advised” the judge on the 7/11 ruling. I stand corrected.

After 7/11, the S’wak judge was promoted to the Court of Appeal. If she was due for elevation, it may be sheer coincidence.

The Sabah Constitution defines Majority. The judge took the dictionary meaning. The dictionary meaning cannot be law when the Sabah Constitution defines Majority. The dictionary meaning cannot be “superior” to the Definition in the Sabah Constitution.

The right law on 12 May 2018 may be the 1966 Stephen Kalong Ningkan case from S’wak as evident from the Sept 1 Majority ruling by the Federal Court.

The Federal court did not make a final determination on 10 constitutional questions in court because MA withdrew the case. Earlier, the Federal court had pledged to end the power grabs in Sabah once and for all.

Had MA’s case continued, it would be clear that Shafie Apdal should have been appointed CM on Sept 26 last year.

Since 12 May 2018 was unconstitutional, the Sept 26 gov’t would be legally liable for all the financial and legal implications arising from the previous gov’t. So, that may have persuaded MA to withdraw the case.

The moral of the story: frogs (defectors) cannot clamber over the walls of the Istana (palace) in the wee hours of the morning and dictate the formation of gov’t.

The territorial assembly is the proper forum for changing the guards between elections.

The real issue in Sabah . . .

Once PTI (pendatang tanpa izin or illegal immigrant), forever PTI, unless Parliament gives Amnesty.

Parliament should give Amnesty to PTI in Sabah who are illegally holding late registration birth certificates. They didn’t obtain the late registration birth certificates from the court. No court will give PTI late registration birth certificates if they were born abroad.

The cases of Salman Majid from Pakistan in the High Court in Malaya and Majid Kani from India in the High Court in Borneo refer.

Salman went from Sabah to Malaya. Harris Salleh testified on his behalf that he (Salman) was a “loyal BN supporter”.

Being a loyal BN supporter does not qualify anyone for late registration birth certificate and blue MyKad without citizenship.

Lawyer Karpal Singh, who represented Salman, told the court that citizenship once given cannot be taken back.

Karpal was misreading the Federal Constitution. He cannot put on blinkers on an Article which states that citizenship once given cannot be taken back if there’s no alternative citizenship or the person in court would be reduced to statelessness.

Anyone can give any Opinion in court. Opinion is not law. Only the court can declare law.

What citizenship?

Salman had a late registration birth cert but not from the court and blue MyKad without citizenship.

Of course, those under operation of law, do not need a citizenship cert no matter where they are born. Those under operation of law are descended from a citizen. Jus sanguinis . . . by blood.

There’s no jus soli — citizenship by place of birth — in M’sia as in the US, for example.

The law says that the onus is on the holder to demonstrate eligibility for citizenship. If there has been fraud on the part of the holder, or “mistake” on the part of the gov’t, the document from the gov’t does not exist, as if it never existed, and if it exists, ceases to exist, as if it never existed.

Documents based on fraud or mistake cannot exist in law.

Locals who get late registration birth certificates are Orang Asal (indigenous), and probably non-Orang Asal, who go through a checklist at the Mobile Court or the High Court.

These late registration birth certificates support the “operation of law” clause although the latter (clause) does not need a citizen to be born in the country.

I believe that the Orang Asal with late registration birth certs do not have to apply for citizenship. It’s clear in law that the Orang Asal with late registration birth certs are citizens and descendants of citizens by virtue of NCR (native customary rights) land i.e. ancestral and historical property under Adat and the Native Court.

Adat, based on customary practices, is the 1st Law in International Law.

I am not sure about the non-Orang Asal in Sabah with late registration birth certificates.

Under the law, the PTI born in M’sia are also eligible for local birth certificates. Those who don’t have birth certificates can apply for late registration birth certificates through the court. Those with a Form Five school leaving certificate can apply for permanent residence i.e. red MyKad.

Anyone born in M’sia will get a birth certificate.

In 1965, Parliament gave Amnesty to thousands of people in Malaya who acquired citizenship although they were not eligible. They were fined RM300 and given permanent residence when they surrendered the citizenship.

I know the story of a man who was among those who had to surrender the citizenship. He was the only one among siblings to be affected. Ironically, he only secured his citizenship again about a year before he passed away. He visited Kerala, southwest India, for the first time in 50 years with a M’sian international passport.

Those who surrendered the citizenship could not be blacklisted from re-applying for citizenship since they were given permanent residence.

It was not possible to deport them, mostly to India where they were born, probably since there were too many of them. British subjects in Malaya could apply for citizenship but only after 12 years uninterrupted residence. Any absence of two weeks or less would still qualify as uninterrupted residence.

Read further here . . .



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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