The ambiguity of boundary defined ‘Native' of Sabah in the Federal Constitution and Sabah Ordinance Court proofed having disasterous effects on the people of Sabah.
The question is self-explain from Malaysiakini,as below;
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So what is the Sabah state law that defines the ‘Natives’ in Sabah?
It is the Interpretation (Definition of Native) Ordinance 1952 where it clearly states:
(a) Any person both of whose parents are or were members of a people indigenous to Sabah; or
(b) Any person ordinarily resident in Sabah and being and living as a member of a native community, one at least of whose parents or ancestors is or was a native within the meaning of paragraph (a) hereof; or
(c) Any person who is ordinarily resident in Sabah, is a member of the Suluk, Kagayan, Simonol, Sibutu or Ubian people or of a people indigenous to the State of Sarawak or the State of Brunei, has lived as and been a member of a native community for a continuous period of three years preceding the date of his claim to be a native, has borne a good character throughout that period and whose stay in Sabah is not limited under any of the provisions of the Immigration Act, 1959/63 [Act 155.]:
Provided that if one of such person's parents is or was a member of any such people and either lives or if deceased is buried or reputed to be buried in Sabah, then the qualifying period shall be reduced to two years; or
(d) Any person who is ordinarily resident in Sabah, is a member of a people indigenous to the Republic of Indonesia or the Sulu group of islands in the Philippine Archipelago or the States of Malaya or the Republic of Singapore, has lived as and been a member of a native community for a continuous period of five years immediately preceding the date of his claim to be a native, has borne a good character throughout that period and whose stay in Sabah is not limited under any of the provisions of the Immigration Act, 1959/63 [Act 155.].
And according to Section (2) (3) of the same ordinance none of the above is valid unless “an appropriate declaration made by a Native Court under section 3”. The problem here is that in the Native Court Ordinance the definition of Native refers back to the Interpretation (Definition of Native) Ordinance 1952. Similarly in the Sabah state constitution, in Article 41 (10) it refers back to “the indigenous people” in Sabah.
In the federal constitution itself the definition of Native is provided for in Article 161A (6). For Sarawak the various ethnic groups are clearly defined in Clause 7 but for Sabah, Clause 6(b) refers back to “a person of a race indigenous to Sabah” this again refer back to the Interpretation (Definition of Native) Ordinance 1952. Granted in the Interpretation Ordinance require the acknowledgement from the Native Court but then again which ethnic group should preside in the Native Court? That person must represent the ‘Native’ community in Sabah.
The only ethnic groups that are clearly defined in the Ordinance are members of the Suluk, Kagayan, Simonol, Sibutu or Ubian people, the people indigenous to the state of Sarawak or the state of Brunei. In Section 2 (d) of the Ordinance it even extend to the people who are members of a people indigenous to the Republic of Indonesia or the Sulu group of islands in the Philippine Archipelago or the states of Malaya or the Republic of Singapore.
There is no mention of the 44 ethnic groups that made up the people in Sabah in this Ordinance.
Why has this problem come to this? According to the Cobbold Commission in 1962 an Advisory Board must be established represented by the major ethnic groups in Sabah and the Commission recommends that the Interpretation (Definition of Native) Ordinance 1952 be amended. While Point 12 of the 20 points which plagiarized the Commission report only pointed out:
12. Special Position of Indigenous Races
In principle, the indigenous races of North Borneo should enjoy special rights analogous to those enjoyed by Malays in Malaya, but the present Malaya formula in this regard is not necessarily applicable in North Borneo.
No one bothers to make the necessary amendment to the Interpretation (Definition of Native) Ordinance 1952. Even when Pairin and his brother Dr Jeffrey formed the government between 1985 to 1994 they did not bother to make the necessary amendments to the Sabah State Law specifically the Interpretation (Definition of Native) Ordinance 1952.
They had control over the Dewan Undangan Negeri, they had more than 2/3 majority - how is this possibly an oversight when Pairin himself is the Paramount Chief ( Huguan Siou ) of the ‘Natives’ in Sabah? Does he care about the people
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Obviously what stated in the Constitution is contradict to the intention of Cobbold Commission; Majority race is not represented. 44 ethnic groups is absent from the listing. The largest ethnic group Kadazan-Duzun, Murut and Bajau were left out.
The social economy implications are self-explanatory from minorityrights ,as below:
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Refugees and illegal immigration – arguably facilitated and even encouraged by state authorities – have altered Sabah’s ethnic composition to such an extent that indigenous peoples are in effect being politically marginalized and, as a consequence, their rights relating to landownership and resource allocation have been increasingly watered down in recent years.
By permitting an influx of perhaps more than a million Muslims from the southern Philippines and Indonesia from the 1990s to settle and acquire voting rights (even if their presence is not always admitted in official figures) the current government under the UMNO (United Malays National Organization) party has ensured its political domination over Sabah since it derives most of its support from Muslim groups. Indigenous non-Muslim peoples such as the Kadazan-Dusun, Muruts and Chinese are declining into demographic and political insignificance, while Muslim groups have become dominant both in demographic and political terms. Indonesians are thought to have only constituted about 5.5 per cent of the population in 1960 but represented 21.3 per cent in 1990. Estimates suggest that the figure is much higher today, though these figures do not necessarily include all illegal immigrants.
Though in theory indigenous peoples in Sabah are supposed to benefit from some of the programmes for Bumiputeras, the trend has been for authorities to direct these mainly towards the now dominant Malays and Muslims. Indigenous peoples and non-Muslim minorities such as the Chinese are clearly under-represented in the political and economic arenas.
Customary landownership has also been weakened and is increasingly threatened. Since the mid-1990s, when a political party connected with indigenous peoples last lost power in the State of Sabah, the land rights of indigenous peoples theoretically protected under the Sabah Land Ordinance 1930 and the Sarawak Land Code have increasingly been restricted or set aside for logging and other development activities. Large tracts of native customary land have been included in forest reserves for which logging concessions are awarded – usually without the knowledge of indigenous peoples. Though in theory the land should eventually revert to indigenous communities, recent cases, for example in Tawau, demonstrate that they are instead often used for other purposes, such as by other government agencies, or sold to corporations for plantations.
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The influx of uncontrollable illegal immigrants and giving out citizenship in such a large quantity to Muslim from Indonesia and Philippine is a question of sovereignty especially they are also claiming bumiputera right under Article 153 as Muslim.
The influx of illegal immigrant result shifting in the state demographic dramatically, eating up to 21.3% of the total population in 1990, which severely impacted on the local economy.
The question of fairness and justice should be asked when right of aborigines who settled in Sabah for century has been denied while new immigrant from Indonesia and Philippines is given special priviledges simply because they are Muslim?
Special priviledges are not free, they are cost derived from national wealth and out of non-Bumiputera expense so what is the rational to justify giving them citizenship and special priviledges without apparent economy and social contribution to the country? Isn't it obviously counterproductive? or may even classfy as an act of treason.
This have been a main factor pulling the local economy backward and created a lot of social problem ensue. 38% of aborigine still living in poverty although Malaysia in general had reduced poverty rate tremendously since 1960.
The very likely motive of giving up such a large quantity of citizenship is link to self-interest of political vote pulling and islamization is yet to be determined but what puzzling it whether it is consitutional or not? There is obvious urge in crime rate and social problem associated with it.
It is clear for the state of Sarawak on the boundary of the definition of ‘Native' which inserted into the Federal Constitution except for the definition of ‘Malay' in the Article 161(7) whether it shall be exclusively construed with the Cobblod Commission and free from the definition of Article 160 or not?
Questions;
1. Is the definition of 'Malay' under Article 160 also imply in Article 161(7) because the constitution didn't say otherwise. If it is implied then it is contradict to Cobbold Commission and severely undermining the integrity of Constitution because the very purpose of 'Natives' to be added along side with Malay is to claim the same special priviledges as the 'Malay' under Article 153, besides, all other 'natives' defined therein are on hereditary basis, just directly contrast with the 'Malay' defined under Article 160.
Additionally, this also implied Native Malay need to comply wit both Article 160& 161; Hereditary, profess in Islam, habitually speak Malay and practice Malay custom.
2. Another scenario is whether the 'Malay' in Article 161(7) and 160 enforced in tandem? This means non-Malay ethnic by descent can no longer be converted into Malay because it need to comply with Article 161(7), Hereditary basis. Which I belief less likely since Malaysia currently allow non-Malay ethnics by descent convert to become Malay under Article 160.
3. If native Malay in Article 161 is exclusive thus need not comply with Article 160. Then does it means any Malay-ethnics-by-descent (including Malay from West Malaysia) is safed from complying criteria of Malay under Article 160 still can be called a Malay and enjoy the special priviledges except that it is tie back to the State of Sarawak natives which subject to Sarawak's jurisdiction?
Genetically Malay and others natives even with Chinese is unidentical due to large percentage similarity, particularly haplogroup O thus it would only make sense if include Chinese as part of the mix scientifically.
However, I would suggest abolish the special priviledges and treat all citizen equally.
Reference:
https://m.malaysiakini.com/letters/286879
*The blog is solely created and maintaining with my own resource only. No obligation but any amount of ex-gratia to support the continuation of my writtings is appreciated.
Maybank (Malaysia)account number : 1643 1529 3268 (Tay Kian Guan)
*The blog is solely created and maintaining with my own resource only. No obligation but any amount of ex-gratia to support the continuation of my writtings is appreciated.
Maybank (Malaysia)account number : 1643 1529 3268 (Tay Kian Guan)
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