The ongoing challenge by Bersih 2.0 chairperson against her deportation from Sarawak may open up a can of worms on the immigration powers enjoyed by Sabah and Sarawak.
Bersih 2.0 chairperson Ambiga Sreenevasan’s ongoing challenge to the immigration authorities in Sarawak may yet open up a long-awaited can of worms on the so-called special powers enjoyed by the Sabah and Sarawak governments.
Ambiga’s contention is that she has the right, as a Malaysian, to enter Sarawak. No one can argue with this line of thinking.
Hence, Immigration Sarawak had no right whatsoever to deny her entry during the run-up to the recent Sarawak state election. She could only have been deported by the director of Immigration Sarawak acting on the orders of either the chief minister or the state secretary.
Ambiga’s contentions on the matter have to be eventually resolved by the Federal Court with reference to the 1963 Malaysia Agreement and the superior law, the Federal Constitution.
The High Court in Kuala Lumpur dealt her a blow, but not a mortal one, when it refused to grant her leave to apply for a judicial review of Sarawak Immigration’s decision against her. The court in a debatable response thinks the matter should be heard in Sarawak and not at the High Court of Malaya. If that’s true, then Ambiga’s case can also be heard in Sabah which also comes under the jurisdiction of the High Court of Sabah and Sarawak, formerly the High Court of Borneo.
The Bersih 2.0 chairperson’s fear is that she would be unable to take on the immigration authorities in Sarawak since she has been declared persona non grata by the state authorities. That should be less of a concern than the fact that probably no lawyer in Sarawak, including Sarawak PKR chief Baru Bian, would accept her as a client in the matter. It’s probably not really necessary, under the circumstances, that Ambiga should appear in person in court in Sarawak to apply for leave. Her lawyer can represent her.
If Sarawak lawyers are afraid to be seen with Ambiga or genuinely feel that they need to protect the state’s powers to deport, for no rhyme or reason, Peninsular Malaysians and Sabahans, Ambiga’s lawyer from Peninsular Malaysia can apply for ad hoc admission to the High Court of Sabah and Sarawak. There should be no need for the Sarawak Advocate’s Association to object to such an admission or the issuance of a work pass by Immigration Sarawak.
Equal in stature
Leaving aside the merits or otherwise of the Kuala Lumpur High Court’s decision on the matter, it must be conceded that both the High Court of Malaya and the High Court of Sabah and Sarawak are equal in stature but have separate jurisdictions. A case filed in the High Court of Malaya cannot be transferred to the High Court of Sabah and Sarawak, and vice versa.
Ambiga could of course make an issue of the High Court decision in Kuala Lumpur and take it up with the Court of Appeal. It’s by no means certain that she would succeed in this forum given the political nature of her application. For the record, no Peninsular Malaysian or Sabahan deported from Sarawak has ever won in court against the immigration authorities in that state and the state government.
Still, immigration is clearly a federal matter. That power is exercised by the prime minister and the home minister and no one else. In short, no state in Malaysia has immigration powers, notwithstanding the special provisions for Sabah and Sarawak in the Federal Constitution.
The only concern that Sabah and Sarawak had vis-a-vis Peninsular Malaysia and Singapore in response to the British proposal to form the Federation of Malaysia was the fear of being swamped by outsiders.
Sabahans and Sarawakians, rightly or wrongly, genuinely feared and continue to fear that the people of Malaya – Singapore included – would march into their states and take their jobs, land, women and business opportunities and reduce them virtually to slavery. The fact that there’s little likelihood of this happening in reality, except in politics through Umno, seems beside the point.
Most people in Peninsular Malaysia and Singapore view a transfer to Sabah or Sarawak as some sort of punishment, even a slow death sentence, “and would probably not hesitate to commit suicide if it’s even hinted that they might be shipped off to either of the two Malaysian Borneo states”.
Nevertheless, at the time of Malaysia, the founding fathers readily agreed that when it comes to Peninsular Malaysians or Singaporeans seeking jobs in either Sabah or Sarawak, the immigration powers of the prime minister and the home minister would be delegated to the chief minister and the state secretary respectively in Sabah and Sarawak.
The law is silent on whether Sabahans and Sarawakians working in each other’s states need a work permit.
The law being silent, however, does not deter the chief minister, state secretary and immigration in Sarawak, for example, from requiring visiting Sabahans to obtain a visit pass and, if they want to work, a permit. The visit pass ruling, in fact, should not apply to Sabahans – or Peninsular Malaysians for that matter – and neither should the work pass ruling.
Only one immigration system
Malaysians should not be required to get permission either before they can visit any part of their own country. Malaysia does not have three immigration systems but one.
In Sabah, Sarawakians don’t need a visit pass but need a permit if they wish to work. This has been explained by the state authorities as due to their need for gathering statistics in line with their manpower development master plan.
It’s even “understandable”, but certainly no longer acceptable, if Peninsular Malaysians are required to obtain work permits in Sabah and Sarawak.
One exception may be the professions which would like to restrict the respective fields to locals. However, if local professionals are willing to team up with foreign professionals under the aegis of globalisation, any discrimination on this matter against Peninsular Malaysians would be deplorable and must be rightly condemned.
This brings us one full circle back to Ambiga.
She would be well advised to drop her bid to seek a judicial review in court against her deportation from Sarawak and being declared persona non grata in that state. That would probably be, again, an exercise in futility.
Instead, she should seek a ruling in court on whether the prime minister and the home minister have the right under the Federal Constitution to delegate their immigration powers to the chief ministers and state secretaries respectively of Sabah and Sarawak.
If the court affirms that the delegation of such powers is provided for under the Federal Constitution, then the next logical step would be to seek to qualify such powers. That’s the only way to prevent the abuse of such power in particular by the chief minister of Sarawak.
Assuming the court qualifies the delegation of such powers and confines them to the need for Peninsular Malaysians to get work permits in Sabah and Sarawak, it will be still placed in great difficulties.
In Sabah alone, there are 1.7 million foreigners in 2005 as against 1.5 million locals. Of the foreigners, 1.1 million were illegal immigrants.
In Sarawak, there were 500,000 foreigners at the last count in 2005. Of these, 260,000 were illegal immigrants.
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