Minister: Free entry to Sabah via Labuan to end soon says the headline of the Malay Mail article here.
I would like to comment and analyse as follows: the headline in the above link may be an error in facts and law, somewhat misplaced, if not clickbait.
In fact, the truth may be stranger than fiction. The Malaysia Agreement 1963 (MA’63) isn’t law, but as the ultimate political document on Malaysia, it has force of law just like the Federal Constitution.
MA’63, or no MA’63, the British simply transferred the Administration of the Borneo Territories, North Borneo and Sarawak, to the Malayan government on 16 Sept 1963, Malaysia Day.
There are many exceptions, caveats, ifs and buts on Immigration, as evident in the Article itself. It’s not black and white only, black only, or white only. There are many shades of grey.
Obviously, the reference to State government in Borneo is a misnomer. It’s Territorial Government in Sabah and Sarawak.
The recent Amendments to the Federal Constitution, in restoring the status before 13 July 1976 on Article 1(2), re-enshrines Sabah and Sarawak as Borneo Territories in Malaysia. They are not states as in the Federation i.e. Malaya under the Federation of Malaya Agreement 1948. The 1948 Agreement was reinforced by the Federation of Malaya Independence Act 1957.
Borneo States in this case, Article 1(2), reads in law as Territories i.e. they are organised politically but remain unincorporated. They are not in the Federation. The Definition of Federation, notwithstanding the Malaysia Agreement 1963 (MA’63) in Article 160(2), refers.
The reference to the Borneo States in MA’63 Article 1 being Federated with the “states in the Federation of Malaya” does not mean, in law, a new and enlarged Federation emerged.
The Article in the link above itself states, among others, “if the State Government claims its full rights and authority under the Malaysia Agreement 1963 (MA63)”.
This is a BIG IF.
The BIG IF itself may be a contradiction in terms as it implies that Malaysia, although one country, has two Immigration systems as that which covers Hong Kong post-1997 and China. That year saw the British Administration withdraw its presence from the Island and the New Territories on the mainland. The year 1997 brought an end, in law, to Hong Kong’s British Crown Colony status and its “return” to China although Britain had the New Territories in “perpetuity”.
There are important differences between post-1997 and Malaysia Day on 16 Sept 1963.
Chinese nationals, although they can enter Hong Kong, cannot stay indefinately even though, on paper, they may be permitted. The reality decides that Hong Kong cannot allow Chinese nationals to overwhelm Hong Kong people by their sheer numbers. So, reality dictates that the number of Chinese nationals in Hong Kong, for whatever reason, don’t compromise the sovereignty of the people in any manner.
Unlike China, Hong Kong subscribes to the rule of law. The Basic Law is the Constitution of Hong Kong.
In Malaysia, likewise, the rule of law is the basis of the Constitution, i.e. both the Federal Constitution and the unwritten/uncodified “Malaysia Constitution” arising from the constitutional documents on 16 Sept 1963.
In Malaysia, citizens are free to reside anywhere in the country including in Sabah and Sarawak where, although permission may be required, there may in fact be no reason in law to deny it especially when illegal immigrants have over run them.
There are reasons in law why Labuan-Sabah has not been gazetted as an Immigration checkpoint. It probably cannot be done. I stand corrected on this matter which comes within the purview of Parliament. Immigration checkpoints can only be gazetted with Parliamentary oversight.
It cannot be said that the people of Labuan, although staying in a Federal Territory, are not Sabahan.
In law, there cannot be any Immigration checkpoints within Sabah. Labuan to Sabah remain in law Sabah to Sabah and vice versa.
The Sabah Immigration Director was quoted in the local media, many years ago, as saying that non-Labuanites entering Sabah can keep their ferry tickets and boarding pass as “proof of valid entry”. He added that the documents are valid for three months as with the visit pass slips and that stamped on passports at gazetted Immigration checkpoints.
The Sabah Immigration Director clarified matters in the local media after Malaysian citizens, originating from Malaya, could not produce proof of valid entry from Labuan when exiting Sabah via a gazetted Immigration checkpoint. Apparently, being Malaysian, they threw away their ferry ticket and boarding pass.
Foreigners in the same predicament would be fined RM800.
The pandemic has created “special circumstances”, under the Immigration Act in Malaysia, as evident from media reports on the phenomenon.
It should be noted that Sabah and Sarawak have no Immigration powers in law except for that which cannot be exercised by the Federal gov’t in the Borneo Territories.
Immigration is a Federal power.
No state/Territory in Malaysia has Immigration powers.
The Prime Minister has delegated certain Immigration powers by Administration to the Chief Minister in Sabah and Sarawak, and the Home Minister has exercised the same Option with the Territorial Secretary in the two Borneo States.
Briefly, these powers cover visit pass, student visa, dependency pass, longterm spouse visa, work permit and permanent residence in Sabah and Sarawak.
Permanent residence in Sabah and Sarawak is a separate matter from Malaysian permanent residence i.e. red MyKad.
Sarawakians have en bloc permanent residence in Sabah by law but not vice versa. It’s not known whether the latter is work in progress.
There are probably not that many Sabahan in Sarawak which lies somewhat in the backwaters and has a reputation for being parochial. Kota Kinabalu, the Sabah capital, is an international city. It’s also an international airhub, the second busiest in Malaysia after KLIA in Sepang.
The 2010 National Census reported 3.2m people in Sabah as follows: 1.5m Malaysian; 700K non-Malaysian with work permits; 600K with “documents”; and 400K “undocumented” people.
The 2020 National Census, delayed by the pandemic, has not reported the figures.
In Sabah, the media reported 150K Sarawakian in the Territory. That was many years ago. – New Malaysia Herald
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here. He is a regular contributor to the New Malaysia Herald.
Note: The points expressed in this article are that of the writer’s, and do not necessarily reflect the stand of the New Malaysia Herald.