The anomaly of the immigration powers for Sabah and Sarawak

Dr Abdul Aziz Bari, The Ant Daily

OUTSPOKEN: A number of people have come up to me and questioned the privilege given to Sabah and Sarawak to retain immigration authority: they found it awkward to find such a provision in a federation like Malaysia.

Their apprehension is understandable. In a world where countries, for example in the European Union, have essentially done away with such a provision, here we still have people who are stuck in the old mode. The more so when the power was invoked to insulate the powers that be rather than to really protect the general public.

In recent weeks certain politicians from Pakatan Rakyat have been deported from Sarawak, the latest being PKR secretary-general Datuk Saifudin Nasution Ismail and the party’s MPs, Tian Chua and Rafizi Ramli. And that was not the first time.

Over the years we have seen how the provision was invoked by both state governments to prevent not only opposition leaders but also government critics from entering the states. The reason was obvious: that these politicians and figures brought in a certain amount of threat to the ruling Barisan Nasional components in the states.

But somehow certain figures, such as Datuk Ibrahim Ali of the right wing Perkasa, were allowed in although the state government claimed that he was also included in the list of people banned from the state. Whatever it is Ibrahim has reportedly managed to set up similar organisations in the state.

In the meantime, Sarawak Chief Minister Tan Sri Adenan Satem has reportedly challenged Opposition Leader in Parliament Datuk Seri Anwar Ibrahim to take the matter to court. As a former journalist and lawyer the former obviously knew that the latter could not win.

For one thing the position in the Federal Constitution is very clear: while Article 9(1) guarantees freedom of movement to all citizens, Article 9(3) makes the exception that is clearly intended to uphold the anomaly granted to both Sabah and Sarawak.

It was inserted as part of the agreement before the states joined the federation in 1963. And we have had court cases that upheld the state decisions; one in 1979 and the subsequent one in 2002.

Now whether the law should change is a matter for both parliament and of course the two states to decide. To amend the constitutional provision one needs a two-thirds majority support in both the Dewan Rakyat and the Dewan Negara.

As the matter involved the interests of Sabah and Sarawak the concurrent of the respective Yang di-Pertua Negeris is also needed. This is stated by Article 161E (4) of the Federal Constitution. Given these requirements apparently it is not easy to change and as of now we have to depend on the mercy of both state governments when it comes to the matter.

One may say that it all depends on the people of the states: do they want to retain a power that has not necessarily been exercised to protect the people of Sabah and Sarawak as intended by the framers of the Constitution?

In a way it appears that the provision in Article 9(3) has ended up in a similar situation with Article 153 which seeks to protect the special position of the Malays as well as that of Sabah and Sarawak natives.

After more than 50 years the fact remains that the plight of the target groups remains the same. In the case of Article 9(3) the intention was to protect the well-being of the natives of the states so that both states would not be “swamped” by peninsular people who were seen as more educated, more experienced and so on.

But what has taken place so far is that the immigration power has been exercised in such a way that change for the better would not take place in the two states. Whatever it is as in other democracies the people should be allowed to decide for themselves. Now if politicians from Umno-BN are allowed why not those from Pakatan Rakyat? The open and healthy competition would certainly give the Sabahans and Sarawakians more options and ideas to choose from.

It has been explained above that it is quite impossible to have an amendment. As such the only way – apart from a change in the state regimes – is for the court to come up with a better and more enlightened interpretation of Article 9(3) — one that is more in keeping with the original intention of the framers of the Constitution.

Dr Abdul Aziz Bari was formerly IIUM law professor who now teaches at Unisel. He is also a Senior Fellow at IDEAS, an independent think tank, and Penang Institute owned by Penang state government.