OPEN LETTER TO YAYASAN ISLAM SABAH

Dear Yayasan Islam Sabah,

THE YAYASAN Islam Sabah (YIS) appears to be getting way ahead of itself in pontificating sanctimoniously on its four 'theories', for want of a better term, in the Daily Express report, “YIS: Those already having documents need not worry”, on Wed this week.

The first YIS theory is that Malaysian citizens in Sabah need not fear about their citizenship rights as long as their identity card was issued by the National Registration Department (NRD).

This is a fallacy in law.

The Federal Government cannot issue Special Passes, temporary residence permits (green cards), permanent residence status (red cards) or citizenships to foreigners in Sabah without the prior written recommendation and consent of the state government, which must be the initiating party, on a case-by-case basis.

There’s no evidence that the Federal Government indeed received any such prior recommendation and consent of the state government. The politics will not allow it.

If the Federal Government receives any applications directly from foreigners in Sabah for Special Passes, green and red cards or citizenships, it’s duty-bound to advise the applicants to go through the state government and not go off at a tangent and act unilaterally.

The four constitutional documents and/or conventions govern the membership and participation of Sabah and Sarawak in the Malaysian Federation as equal partners of Malaya. These documents are the 1963 Malaysia Agreement (MA63), the 20/18 Points, the Inter Governmental Committee Report (IGCR) and the Cobbold Commission Report (CCR).

In addition, the Immigration Act is clear in that Peninsular Malaysians are foreigners in Sabah and Sarawak.

Again, any Malaysian personal document, for example, mistakenly issued by the authorities will not, in law, be considered a mistake on their part but on the part of the individual who misled them, whether knowingly and/or  fraudulently, to procure something that they were not entitled to hold or were not eligible to obtain.

There’s a precedent.

In 1965, the Federal Government discovered that thousands of people in Peninsular Malaysia had obtained citizenship papers by fraudulent means. It wrote to these people. Most of the fraud touched on applicants misreporting the actual length of their stay in Peninsular Malaysia after arriving from their home countries.

The Federal Government offered a general amnesty to those affected provided that they surrendered their citizenship papers, paid a fine of RM 300 and applied for either permanent residence status or temporary residence permits from the NRD or Special Passes from the Immigration Department as the case may be.

Approval was on a case-by-case basis but within months and in any case did not exceed two years.

The general amnesty did not disqualify those affected from re-applying for the same documents they had to surrender but only when they were eligible. Needless to say, the applicants had to run the gauntlet upon re-applying.There was no guarantee that the generally amnesty would not be held against them.

If one obtains a Malaysian personal document for which one is not eligible or not entitled to obtain under the law and Constitution, the said document would be a nullity in law from the very beginning. In law, it’s as if the said document was never issued.

No passage of time, even over generations, will whitewash an illegality and make it legal.

The onus is on the perpetrator to come forward and face the system without waiting for the long arm of the law to catch up with him or her sooner or later. Perpetrators should not hope for the declaration of a general amnesty which may or may not materialise.

The long arm of the law can catch up with any perpetrator by way of a Judicial Review by any citizen to revoke the “citizenship” of anyone not entitled to hold it or not eligible to obtain such a document. In such a situation, the perpetrator is faced with all sorts of eventualities including being blackmailed for life by any applicant seeking a Judicial Review or ending up in a legal twilight zone as a stateless person.

In Sabah the rot stems from the fact that many people are twice-born, once in their home countries and the second time in Sabah.

Their second birth is recorded in a late registration birth certificate by way of a Statutory Declaration (SD) wherein the applicant falsely and fraudulently claims to have been born in Sabah.

By this seeming laxity on the part of the NRD and the Court, the imposters avoid having to apply for citizenship. How can the NRD accept the contents of a SD as the Gospel truth when it’s nothing but wholesale perjury i.e.lying under oath.

A simple NRD checklist can easily weed out the fraudsters: ancestral kampung? The name of the kampung head and names of those in the Village Security and Development Committee? Names of family members and close relatives? Photographic evidence? Schools attended?

This was not done.

This is an open secret in Sabah and as evident in cases which have been heard or more accurately part-heard in Court.

It would suffice for our purpose to cite two cases: Pakistani carpet dealer Salman Majid, 50; and Indian restaurant keeper Mohd Kani Majid, 46.

Those interested can Google the cases, the tip of the proverbial iceberg, and draw their own conclusions in the light of the periodic outbursts from YIS on the illegal immigrant phenomenon in Sabah.

On what basis is Kani, to focus on one of the cases, holding a MyKad and an international Malaysian passport?

He even admitted in Court in 2009 that he was born in Tamil Nadu, India and arrived in Sabah in 1983 to work in Papar.

If so, did he apply for Malaysian citizenship before being given the MyKad and international Malaysian passport? His MyKad states he was born in Papar.

Why did the Immigration Department take away his MyKad and international Malaysian passport, detain him at the Rumah Merah for Illegal Immigrants in Menggatal, and try to force him to apply for an international Indian passport with a view to deporting him to India?

His lawyer, P. J. Perira, had to write to the Prime Minister, the Home Minister and the Attorney General, and reportedly threaten “to expose all” and predict dire consequences before the case was dropped in Court like the political hot potato it was and his Client suddenly released without any explanation whatsoever.

Kani reportedly got the “treatment” from the authorities because he made the cardinal sin of voting for the Opposition after he reportedly became fed up of being blackmailed by all and sundry. He felt that he was a slave to his blackmailers.

This is the certain fate that awaits anyone in Sabah holding Malaysian personal documents which they are not entitled to hold or eligible to obtain under the law and Constitution. It’s a vicious cycle of criminal exploitation from which the victim can only escape by fleeing back to his or her home countries.

In Salman’s case, also withdrawn by the prosecution, he claimed in Court that certain persons took away a lot of his money and berrated him for more. The Judge can ignore the complaint as irrelevant.

He was last reported to be suing the Malaysian Government for damages and compensation over his detention and for RM one million missing from his bank account. He will probably win since under our adversarial process of Court, the Judge doesn’t ask any questions to ensure that justice is also done to the people and country. It can’t be public policy to allow twice born persons to remain in the country.

Salman was born in Pakistan but he never admitted this, except to say that he was not in the country for 23 years — “being away 10 years without returning is enough for one to lose citizenship” — and that he has been entered in the official records as born in Ranau, Sabah.

Salman was detained at an Immigration Depot somewhere in Kuala Lumpur in early 2005 pending deportation to Pakistan.

No less a person than former Sabah Chief Minister Harris Salleh testified on his behalf in Court where he disclosed that the accused had always been a loyal Barisan Nasional (BN) voter. “Loyal BN voter” were the magical words which apparently persuaded the prosecution to drop all charges against Salman and free him.

The second YIS theory — which does not hold water either — is that raising any doubts on the issuance of MyKads is tantamount to “inciting racial and religious conflicts”.

It was not stated which groups would be engaged in conflict with each other.

However, it would seem to suggest that the hundreds of thousands of illegal immigrants in the country would bash up genuine citizens if they (genuine citizens) ever have the temerity to examine the perceived sins of ommission and commission of the NRD, among others, too closely.

This is not the done thing in any civilised country in the world.

No foreigner can simply walk into Malaysia and threaten the citizens of the country with impunity or call them all sorts of names just to console themselves that they are not as guilty as hell.

Citizenship is a one-to-one arrangement and/or engagement between an individual and the state and this does not involve any other person or group — including YIS — apart from the parent or parents of the said individual.

In administrative law as in Judicial Review, to prove locus standi, a person or group would have to first satisy the Court that it is not a busybody, trouble-creator/mischief-maker or crankster.

Next, it would have to prove to the satisfaction of the Court that it has a legitimate interest to protect.

Third, it must satisfy the Court that it has been deprived of or suffered losses in some way because it has been denied its legitimate interest. It’s not necessary to quantify such losses.

YIS fails on all three counts in determining locus standi.

It has no business self-appointing itself as “Defender of the Federal Government” on the MyKad issue.

The Federal Government is supposed to defend itself.

If any party, other than the Attorney General, rushes to defend the Federal Government on the MyKad issue, it will only be embarrasing it for no rhyme or reason and compromising its position in law.

The third YIS theory, a kamikaze one, is that “even if foreigners take over Sabah, they are of the same Malay stock from the Malay Archipelago”.

This is nothing but politics as evident from DNA studies and has no basis in law.

Rumpun Melayu is a figment of the imagination.

The Malay in the term Malay Archipelago refers to the Malay language, first developed from its Cambodian hill country dialect roots by Hindus and Buddhists from India, as the lingua franca for the region. Malay does not refer to a so-called Malay race.

Malay is an anglicised word which comes from the Tamil malai, meaning hill.

DNA studies have proven that the entire population of Southeast Asia are descended from Dravidians — dark-skinned archaic whites or caucasoids — who made their way from South India, along the Asian coast, to South China and Taiwan and mated with the distinctive Mongolian tribes living there.

This is the only Rumpun in the Malay Archipelago and the rest of Southeast Asia as far as DNA studies go.

The fourth YIS theory — not found in the Federal Constitution — is that only the Murut and Rungus are the original people of Sabah and others are all foreigners who took over the state since 100 or 200 years ago.

Does this mean that only the Murut and Rungus cannot trace their DNA to East Africa? Did they suddenly fall from the sky or sprout from the ground as a separate species from the human race?

The Federal Constitution defines who are citizens in Malaysia and the process by which citizenship can be obtained.

No Malaysian will question the Federal Constitution on citizenship.

There are only three categories of citizenship.

The 3rd category is “citizenship by naturalisation”. These are foreigners who enter the country legally with valid travel papers and with work permits attached to entry permits which will someday facilitate their application for citizenship.

There are strict requirements in law to comply with in the meantime.

A naturalised citizenship would have to first undergo the process of applying for temporary residence (green card), followed by permanent residence (red card).

The 2nd category is “citizenship by registration”.

These are issues of a naturalised citizen either born in Malaysia or abroad.

If born abroad, the birth must be registered at the nearest Malaysian High Commission or Embassy within three months “in order to claim Malaysian citizenship rights”.

One cannot be a citizen by registration without applying for it. In the absence of a formal application to be a citizen by registration, an eligible applicant would only be recognised as a permanent resident.

The citizenship of such a person would be the previous home country of the father or mother who became a naturalised citizen.

Example: a Filipino citizen becomes Malaysian citizen but son of this new citizen would still be Filipino citizen if no steps are taken to apply for citizenship by registration.

The 1st category is citizen by operation of law. This is an issue of a citizen by registration or citizen by operation of law and whether born in Malaysia or abroad.

Again, if born abroad, the birth of such an issue must be registered with the nearest Malaysian High Commission or Embassy within three months “in order to claim Malaysian citizenship rights”.

In the event of failure to register such a birth accordingly, the issue will be considered a citizen of the country where he was born. If the issue insists on staying in Malaysia, he or she can only be accorded permanent residence status but is not barred from applying to become a citizen by naturalisation.

The bottomline is that YIS should not belabour under the misconception that the Federal Government can issue citizenships to any Tom, Dick and Harry.

Agiain, there are articles in the Federal Constitution which govern the issuance of citizenship.

The Federal Government cannot issue citizenship by administration. Issuance of citizenships is not by administrative law but by the Constitution.

The acceptance of SDs in the past from applicants for late registration of birth certificates was by administration. However, this well-meaning Government policy did not facilitate in clearing the backlog of late registration of birth applications from locals. Instead, it was roundly abused by illegal immigrants to obtain Malaysian personal documents which they were not entitled to or not eligible to obtain.

In the long run, the illegal immigrants listed in the NRD computers would become a serious political problem for Putrajaya.

These people either have to be taken by Peninsular Malaysia, repatriated to their home countries or turned over to the United Nations.

If they stay in Sabah, they can only apply for Special Passes from the Immigration Department or turn to the NRD for green or red cards meant for Peninsular Malaysia.

One further difficulty, and compounding the mess, is that the Federal Government has been in non-compliance on the four connstitutional documents and/or conventions. The membership, participation and partnership of Sabah and Sarawak in the Malaysian Federation is thereby rendered inoperable to the extent of the Federal Government’s non-compliance with the four constitutional documents and/or conventions.

Are Sabah and Sarawak in Malaysia or out?

If it transpires that Sabah and Sarawak have in fact never been in Malaysia, the foreigners in Sabah would have to be turned over to their home countries and/or the United Nations.

They can’t stay in Sabah — Rumpun Melayu or no Rumpun Melayu — and continue to overwhelm the local population in a bid to steal the country from right under their noses.

They should go back to their country before its too late and they end up as stateless people.

Avoiding the nightmare of being stateless means the illegal immigrants would have to return to their home countries they same way they came into Sabah i.e. by the backdoor after ditching their Malaysian personal documents which they also procured by the backdoor.

Best Regards,

SELVARAJA SOMIAH