‘Proof of Identity’ Can Bring ‘Legal Twilight Zone’ Into Banking System

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A Sabah flag on the expressboat to Balambangan Island fluttering in the wind as soon as it's departure. IZZRAFIQ ALIAS / The Star. October 18, 2019.

Special preference for illegal immigrants in Sabah ‘unthinkable’ in law!

There are several relevant points in the following link for this Commentary and Analysis on Law regarding the proposed “proof of identity” project in Sabah.

However, I will resist the great temptation to self-plagiarise from the link. Readers can re-open it and visit the points. The banking industry and gold trade were mentioned and has been highlighted in the headline.

Still, if the past has caught up with the people of Sabah to haunt their future on the “proof of identity in law” issue, it’s because Home Minister Syed Hamid Albar’s pledge in 2008 — see New Malaysia Herald link shared earlier — fell on deaf ears in the Territory, if not in Putrajaya as well. The Amnesty issue has been covered in the NMH link.

Syed Hamid did tell the media in Kota Kinabalu that “everyone in Malaysia would have an identity, but not necessarily a Malaysian one”.

Thereafter, nothing was heard on the issue until Home Minister Hamzah Zainudin reminded everybody this week, ten years later, but only on the illegal immigrants in Sabah. It cannot be said that there isn’t anyone in Sarawak and Malaya who need “proof of identity”. It’s an open secret that perhaps “thousands” of former British subjects, for example, remain stateless in Malaya.

Orang Asal

There are also several thousand Orang Asal (Indigenous) in Sabah and Sarawak who remain undocumented, as pointed out by their leaders.

Hamzah has a duty to tell the people why Syed Hamid’s initiative fizzled out.

He must also justify the Home Ministry’s emphasis on Sabah only for the “proof of identity” project.

Thirdly, the onus may be on the PTI to use vaccination certs as proof of identity. The Malaysian government cannot say that it doesn’t recognise a document it issued.

In law, it doesn’t matter if the status of the vaccinated reverts to unvaccinated after the efficacy of the vaccination reportedly drops below 50 per cent. It’s not about efficacy but the fact that the cert exists as “proof of identity”. The 3rd booster dose is an unrelated issue.

Fourthly, Hamzah must reassure the voting public in Sabah on the integrity of the electoral rolls and the sovereignty of the people.

It was the Home Minister who raised eyebrows during the run-up to the snap Sat 26 Sept 2020 Sabah election by publicly casting doubts on the integrity of the electoral rolls. He announced that National Registration Dept (NRD) officers would be stationed at polls stations to prevent the PTI (pendatang tanpa izin or illegal immigrants) from voting.

Warisan Ousted

Hamzah’s NRD move had a great impact on the election results. The government party, pro-PTI Warisan, fell short and was ousted from power. Earlier, there were widespread public expectations from Tawau to Kangar that Warisan would win the snap polls by a landslide.

Hamzah must explain if the NRD officers thwarted Warisan’s renewed bid for power.

The party allegedly overthrew the Barisan Nasional (BN) Plus government “unconstitutionally” on Sat 12 May 2018 i.e. two days after it was installed following GE14. The Federal Court, in a majority Ruling on Tues 1 Sept 2020, said that Sat 12 May 2020 was not in compliance with the Sabah Constitution.

The bottomline: there may be people in the electoral rolls who don’t hold the blue MyKad but yet, somehow, they are present as voters. They should be removed from the electoral rolls and given “proof of identity” but not as Malaysians. The 2013 Royal Commission Inquiry (RCI) Report on Illegal Immigrants in Sabah refers.

Two Categories

For those unfamiliar with Sabah, there are two categories of PTI in Sabah.

The first category got off the boat “yesterday”. Under the law, these can be sent back but invariably return. They can be identified by biometrics to prevent them claiming “proof of identity” in Sabah.

The other PTI category has been in Sabah for nearly 40 years. These can’t be sent back, as explained by Hamzah, and can be given “proof of identity” but not necessarily Malaysian.

In law, those who have been in Sabah for ten years or more, with or without expired documents, can be given ‘proof of identity in law” by the Malaysian government.

Those who have in Sabah for 10 years or more, with or without expired documents, would certainly be considered stateless unless the home countries can take them back. They would have lost citizenship back home by being away and not renewing their travel documents.

In law, and on paper, a government literally can do whatever it wants unless restrained by the court or by the people taking to the streets.

The “proof of identity” project in Sabah can be implemented by administrative law i.e. government policy in action which has been gazetted.

You can also refer to this link.

Judicial Review

Administrative law isn’t law at all.

It can be challenged by judicial review within three months of the Applicant being “affected”. The Applicant must prove locus standi viz. the legal capacity to initiate judicial review. If the High Court is satisfied, it will grant Leave to initiate judicial review.

In Malaysia, unlike in England for example, the High Court will not go into the merits of the Application if the government has complied with its own procedures. The High Court does not consider whether government procedures have been unfair. Generally, the government wins almost all judicial review cases. They keep the 2K lawyers at the Attorney General’s Chambers (AGC) busy.

The above Commentary and Analysis also takes its cue from the following links:

https://www.thestar.com.my/news/nation/2022/02/10/sabah-opposition-leaders-speak-up-against-planned-039special-card039-for-the-undocumented#.YgUo-2kuHsQ.whatsapp

https://www.dailyexpress.com.my/news/186809/card-must-not-have-legal-status

https://www.malaymail.com/news/malaysia/2022/02/10/long-residing-foreign-nationals-in-sabah-to-get-special-card-says-home-mini/2040734

https://www.thevibes.com/articles/news/54037/dont-jump-the-gun-on-kad-warga-asing-sabah-cm

https://www.thevibes.com/articles/news/54020/dont-react-hastily-let-state-govt-explain-pbs-on-sabah-migrant-cards

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.

The points expressed in this article are that of the writer’s and do not necessarily reflect the stand of the New Malaysia Herald.

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