The department flatly refused to register his son as a Sino-Kadazan (urban Dusun) a recognised native group, as per the Sabah ordinance.
The father has since appealed to the NRD with Sepanggar MP Eric Majimbun
(right) in tow, but to no avail.The NRD is not budging and refuses to recognise, as per the federal constitution, any term which embraces both a native and a non-native group.
The NRD is, however, willing to exercise its discretion and register the boy as a KadazanDusun if the term Chinese is not acceptable to the father.
The flare-up has brought former Sabah attorney-general Herman Luping into the picture with his take on the matter and related issues on ethnicity and citizenship which continue to dog the NRD.
"This matter of the status of the children of native/non-native mixed marriages and other issues involving the NRD needs to be rectified by the authorities and community leaders," said Luping, a Kadazan who is himself of part-Chinese origin.
"The position of half-natives, for example, is not mentioned in the
Malaysia Agreement or the Federal Constitution."
Other lawyers in the know, requesting anonymity, have suggested a simple definition for a native: "A native is an issue of either parent who is a native."
This would mean the insertion of also a list of linguistic groups in Sabah which can be recognised as native to the state.
Matters are complicated, according to Luping, by the fact that there are two definitions of native in the state i.e. in the federal constitution and the other in the Sabah ordinance.
The father is the most important factor in the definition of a native, as per the federal constitution, while the position of the offspring of native/non-native mixed marriages is defined in the Sabah ordinance.
In addition, the natives of the southern Philippines, Indonesia, Brunei, Sarawak, Malaya and Singapore are also recognised as natives of Sabah, provided their stay in the state is not limited in any way by the provisions of the Immigration Act 1959/63.
In short, since the federal constitution and the Sabah ordinance seem to differ on the definition of native, the supreme law prevails and the inferior law (the latter) has been rendered null and void to the extent of its inconsistency with the former.
Colonial legislation
The NRD, being a federal department, is not willing to make an exception for Sabah. (An ordinance is a colonial piece of legislation while an enactment is state law, the federal law being known as an Act.)
"It seems that the interpretation of native in the federal constitution, as per Article 161A, was the agreed interpretation at the Malaysia talks," said Luping.
In the past, a half-native could go to the native court and apply for a Sijil Anak Negeri (native certificate). But this is no longer the case following widespread abuse by corrupt court officials in the 1970s and 1980s. Applications for SAN have been frozen.
Half-natives, however, can apply to the native court for a verification letter "to enable them to enjoy privileges meant for the Bumiputera".
Clear-cut cases need not go to the native court but instead get the verification letter from the director of the Sabah native affairs office. The director, at the same time, is also secretary of the Sabah native affairs council. Verification letters do not mean recognition as natives.
Luping considers the issue of half natives as rather ironic considering that the chief delegate from Sabah at the Malaysia talks was Donald Stephens, whose only link with the natives was a Kadazan maternal grandmother.
However, that didn't prevent Stephens from emerging as the Huguan Siou (paramount chief) of the KadazanDusuns.
The former Sabah AG notes that Article 161A of the federal constitution further compounds matters by denying the children of a Sabah female native married to a foreigner the privilege of not only native status but also citizenship by operation of law.
Luping considers this as blatant discrimination in this age and notes that in fact any Malaysian woman, native or non-native, married to a foreigner cannot register her children automatically as Malaysians.
Strangely, Malaysian Muslim women married to foreign men may not be in the same predicament as their non-Muslims sisters.
Their children, by the definition of Malay in the federal constitution, are recognised as Malays and by extension citizens by operation of law.
Citing a recent Lebanese case, Luping figures that if anyone is willing to go to the federal court for a ruling on the matter, as a test case, the law against the children of Malaysian women married to foreign men can be overturned.
"The situation in Lebanon is the same as in Malaysia and the court ruled in favour of the woman," said Luping who advocates making similar arguments in the Federal Court.
Again, many Sabah natives have not only been denied native status but also citizenship by operation of law merely because their fathers were not domiciled in the state on the 1st Malaysia Day i.e. Sept 16, 1963.
"Many of these children were born in Brunei and continue to hold red identity cards," said Luping.
Malaysian law states that children of male citizens born overseas must have their birth particulars registered at the nearest high commission or embassy.
In the event of the failure to do so, the child can only qualify for permanent resident status. The child is considered a citizen of thecountry where he or she was born.
Tip of the iceberg
The consensus of public opinion is that such certificates should be revoked and the holders deported unceremoniously.
"Many of the houses built on Kepayan Ridge - in Kota Kinabalu - for example, were built on native land bought cheaply by a person from Penang who obtained a native certificate," said Luping.
Another person from Malacca, according to Luping, "even built a bogus tombstone of his mother in a village in Kiulu to get his hands on a native certificate".
Both cases appear to be the tip of the proverbial iceberg in Sabah.
The importance of the native status issue in Sabah, as elsewhere in Malaysia, only arises because of the existence of native title land, native communal title land and the special privileges (also meant for the Orang Asli and Malays in Peninsular Malaysia), according to senior lawyers.
One senior lawyer begs to differ. "Even without these factors," said Martin Idang, "It's important to define who is a native?" He finds it difficult to reconcile his stand with the concept of an otherwise colour-blind federal constitution.The special privileges cover four key areas viz. representation in the civil service, representation in government-owned institutions of higher learning, representation in the award of government scholarships and representation in the award of government contracts and other business opportunities created by the government.
The special privileges, however, are not meant to deny non-natives from taking part or being represented fairly in the four key areas
30/09/09
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