Malaysia One Country, Three Immigration Systems, 60 Years Later

Immigration, being Federal, no state in Malaysia can have such power apart from what cannot be exercised by the Prime Minister and Home Minister in the former British Borneo!

Commentary and Analysis . . . When Queen Elizabeth II was still around, there were reports in the media that she never carries the passport, not even diplomatic, since it was issued in her name. It must be the same protocol with King Charles at the Immigration checkpoint.

It’s surprising that the Agong, and Raja Permaisuri, produced passports at the Sabah-Sarawak border on Saturday 9 September 2023 before entering Sarawak. It’s not known whether the passports, probably diplomatic, were stamped with visit pass after stamp for proof of valid entry.

Federal government servants in Sabah and Sarawak, diplomats, judges, police, armed forces personnel and dependents don’t need visit pass. They can show the departmental tag. The dependents can get authorisation slip from the Immigration Dept.

Happy Malaysia Day 16 September. God bless . . .

Malaysia Day remains Occupation Day because there has been non-compliance on the Malaysia Agreement 1963 (MA’63) since 16 Sept 1963.

Proxy government in the former British Borneo must end.

MA’63 is the basis for Equal Partnership of North Borneo, Sarawak and Malaya (S’pore merged) in Malaysia.

The Malaysia Parliament, taking the cue from the Singapore Separation Act 1965, must grant independence for Sabah and Sarawak.

Malaysia Day isn’t celebrated in Malaya.

Every year, since 2010 based on then Prime Minister Datuk Seri Najib Tun Razak’s initiative, Malaysia Day was officially celebrated in either Sabah or Sarawak.

Before 2010, those who celebrated Malaysia Day were arrested by the police and detained. Datuk Sri Jeffrey Kitingan was one of those arrested in Tuaran before Najib’s announcement that Malaysia Day, 16 September, would be public holiday.

Three Immigration Systems

The immediate issue that arises, and has come under renewed public scrutiny in the wake of the Agong and Raja Permaisuri at the checkpoint, may be something that’s often forgotten in Malaya. Malaysia may be one country but it has three immigration systems in place as in China, Hong Kong and Macao.

The two systems in Sabah and Sarawak ostensibly protect local jobs from being taken by people from Malaya. Ironically, the former British Borneo remains plagued by illegal immigrants. Also, both Sabah and Sarawak are short of labour, talent and skills. The two territories need training institutes. The universities in Sabah and Sarawak allegedly turn out unemployable graduates.

Again, Immigration being Federal, no state in Malaysia can have such power apart from what cannot be exercised by the Prime Minister and Home Minister in the former British Borneo. More on immigration and passports later.

Often, it’s also forgotten that the PTI (pendatang tanpa izin or illegal immigrants) phenomenon complicates immigration matters in Sabah and Sarawak.

Novel Solutions

So, the government may fall back on “novel solutions” as happened during the snap Sabah election on 26 September 2020 and before GE15 last November. There wasn’t even a peep out of two backdoor Prime Ministers, Tan Sri Muhyiddin Yassin — Mahiaddin in the birth certificate — and Tan Sri Ismail Sabri when Home Minister Datuk Sri Hamzah Zainudin publicly threatened the PTI.

The media reported that Hamzah swore that “no PTI will vote as long as I am Home Minister”.

He placed JPN (Jabatan Pendaftaran Negeri or National Registration Dept) officers at polling stations.

There are 240K PTI in Sarawak, according to official figures in media reports not so long ago.

In the 2010 National Census in Sabah, only 1.5m people of the 3.2m population were listed as locals. 700K people had work permits, 600K people had “dubious” documents and 400K people were undocumented. The breakdown of Sabah’s 3.9m population in the pandemic-delayed 2020 National Census wasn’t published.

Passport Or No Passport

We resume, passport or no passport, on the three immigration systems in Malaysia.

Generally, Other Malaysian — i.e. Malayan in Sabah and Sarawak or Sabahan in Sarawak — just produce the MyKad unless they hold work permit. The visit pass comes with the work permit. All Malaysian can just produce MyKad when entering the former British Borneo. It’s not known why Agong and Raja Permaisuri Agong didn’t just show the MyKad at the Sarawak border.

It may be politically impossible to have one immigration system in Malaysia. Still, there’s no reason for Agong and Raja Permaisuri to run the gauntlet.

The local Immigration system is the only right that the people of Sabah and Sarawak have.

Otherwise, all has been lost by the leaders virtually betraying them.

By law, Sarawakian have PR (permanent residence) in Sabah but not vice versa.

By law, Sarawakian need work permit in Sabah. That means using the passport for the work permit stamp.

Permanent resident in Malaysia — i.e. red MyKad — don’t need work permit in Malaya. The status of Malaysian red MyKad from Malaya, in Sabah and Sarawak, stands best described as foreigners. They need work permit in Malaysian Borneo. Work permit in Malaysia comes under Jobs Malaysia, an agency under the Human Resources Ministry, which works online. Immigration stamps the work permit in the passport.

Sabah and Sarawak issue their own PR but only for Malayan in both territories and Sabahan in Sarawak.

Generally, immigration in Sabah and Sarawak will ask other Malaysian for the passport. If they are not carrying it, or don’t have the document, the Immigration can’t do anything about the discovery. They just accept the MyKad. The visit pass, small slip on thermal paper that fades in perhaps two months, ironically remains valid for three months. Foreigners get the three months on the passport. Sarawakian in Sabah don’t need visit pass as they have PR, by law, in the territory.

Foreign nationals from certain nations, including Commonwealth, need visa in Malaysia for visit pass.

Sabahan in Sarawak need visit pass unless granted PR by individual application.

Null and Void

The requirement in Sabah that Sarawakian, although having PR in Sabah need work permit, may be null and void since Malaysian PR holders don’t need work permit in Malaya.

However, the law on work permit for Sarawakian in Sabah has not be tested.

In law, inferior law is null and void to the extent of its inconsistency with superior law. Refer to Article 4 in the Constitution.

In law, even an invalid law remains valid unless ruled otherwise by the Federal Court through the High Court. We don’t have Constitutional Court in Malaysia. The Federal Court can sit as the Constitutional Court.

We don’t have Constitutional Court in Malaysia as there may be no money in constitutional law. So, we probably don’t have any constitutional experts or even constitutional lawyers, worth their salt.

In Sabah, there’s case law by Judge Ian Chin on “strong Sabah connections” for admission to the High Court of Borneo (Sabah and Sarawak) in Sabah. The three criteria are Sabah address in the MyKad, registered as voter in Sabah, and owning residential property in Sabah.

It’s not clear whether Malayan in Sabah, in not seeking admission to the High Court, can claim “strong Sabah connections” and thereby do away with the need for local PR.

Resident

The Special Provisions for East Malaysia (Sabah and Sarawak not mentioned) in the Immigration Act 1959/1963 speaks of “resident of East Malaysia”. The law needs clarity by way of further and better particulars. In any case, East Malaysia remains antiquated term in Malaysia since East Pakistan became Bangladesh in 1971. Malaysia fears that East Malaysia risks being divisive term.

Again, contrary to public perceptions, immigration remains Federal power i.e. it’s in the Federal List in the Constitution. No state in Malaysia, including Sabah and Sarawak, can exercise immigration powers.

Having said that, the Prime Minister delegates certain immigration powers by administration to the Chief Minister of Sabah and the Premier of Sarawak. The Home Minister does the same with the State Secretary in Sabah and Sarawak.

Certain Powers

These certain immigration powers are those which cannot be exercised by the Prime Minister and Home Minister in Sabah and Sarawak.

These certain immigration powers are visit pass for Malayans entering Sabah and Sarawak, visit pass for Sabahan entering Sarawak, work permit for Malayan in Sabah and Sarawak, work permit for Sabahan in Sarawak and work permit for Sarawakian in Sabah, student visa for Malayan in Sabah and Sarawak, student visa for Sabahan in Sarawak, and dependency visa for Malayan in Sabah and Sarawak, dependency visa for Sabahan in Sarawak, and longterm spouse visa for Malaysians and foreigners alike.

Sabah and Sarawak cannot grant citizenship but can recommend them for foreigners since they have power over local PR and visit pass for other Malaysian.

If the Federal government grants citizenship to foreigners in Sabah and Sarawak, without the sanction of these territorial governments, issues may arise re local PR. If so, these newly granted citizenship holders need visit pass just as the case of Malayan in Sabah and Sarawak and Sabahan in Sarawak. — NMH

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