‘Sword of Damocles’ on immigration in Sabah, Sarawak

Joe Fernandez
 
If Sabah and Sarawak have the power to issue visit passes, they should have the right to deny them as well.
 
COMMENT Longtime Borneo rights advocate Jeffrey Kitingan, being denied entry recently at Kuching Airport, has re-opened the debate on whether Malaysia has three immigration systems and with good reasons too.

The “Sword of Damocles” on immigration descended on Jeffrey, a frequent visitor to Sarawak on Borneo rights, and on Pan Borneo nationalism. He heads the Borneo Dayak Forum.

Immigration, under the Federal Constitution, is a matter reserved for the Malaysian Government. However, by convention — i.e. the working of the Federal Constitution — the Prime Minister and Home Minister can delegate their immigration powers to the respective chief ministers and state secretaries in Sabah and Sarawak.

The higher courts have never explored to what extent such powers can be delegated. In one particular case, the High Court of Borneo in Kuching held that “a citizen from the peninsula is a foreigner, under the Immigration Act, in Sarawak and hence has no rights”.

It would have been interesting to read whether the court of appeal and the Federal Court would have upheld the High Court of Borneo’s ruling on the case.

It cannot be the intention of the framers of the Malaysia Act 1963 (MA63) and the founding fathers in Borneo that Sabah and Sarawak equal the Malaysian government on immigration powers.

The concern in the Borneo states, in 1963, was Malayans taking jobs away from locals in Sabah and Sarawak.

That concern may no longer exist although Sabah and Sarawak have power to issue work permits to Malaysian citizens who are not from their states. The concern now is over the influx of foreigners, both legally and illegally.

Besides work permits, both Sabah and Sarawak apparently have powers delegated to them to deny visit passes to Malaysian citizens who are not from their states. If Sabah and Sarawak have the power to issue visit passes to Malaysian citizens, it can be argued that they should have the right to deny them as well.

This where Jeffrey was denied a visit pass at the Kuching Airport. Again, the reason for denying him the facility was the fact that his name was reportedly on a blacklist.

In Australia, for example, a name can be entered in the immigration blacklist but for no longer than five years. One is free to enter Australia again after five years. There’s clarity here on one’s status.

In Sabah and Sarawak, no one is sure for how long one can be on the blacklist. It’s unlikely that any name on the blacklist will be removed by the authorities concerned on their own accord. Those affected would have to take the initiative.

Generally, on paper, the Immigration Department in Sabah and Sarawak will only blacklist a Malaysian upon the written directive of the chief minister or state secretary, backed by supporting documents.

In one particular case study, the late Sarawak Chief Minister Adenan Satem directed that a Malayan be removed from the blacklist after 29 years. It transpired that his name was on the immigration blacklist despite there being no written directive either from the chief minister or state secretary. There were also no supporting documents for the blacklisting.

In addition, Sabah and Sarawak have the power to grant permanent residence to Malaysian citizens who are not from their states.

It’s by no means easy for Malayans to secure permanent residence in Sabah and Sarawak. Likewise, Sabahans and Sarawakians securing permanent residence in Sarawak and Sabah, respectively, is easier said than done.

There’s no one solution fits all policy. Permanent residence may be granted but only on a case by case basis. Permanent residence does away with the need for visit passes and work permits.

Permanent residence does away with the need for visit passes and work permits. Since the 80s, Sarawakians don’t need visit passes to enter Sabah. If they wish to be employed, they need work permits under a 1985 ruling.
Joe Fernandez was previously Sabah correspondent for malaysiakini and was also with other online news portals.

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