A SLEW of laws in the federal constitution that clash with the Sabah Interpretation (Definition of Native) Ordinance 1958 have made it possible for foreigners to “claim native status”, said a law expert.

Professor Dr Shad Saleem Faruqi said a prerequisite for obtaining native status was being a Malaysian citizen, as there no definition of ethnic groups indigenous to Sabah in the constitution.

Unlike Sarawak, in which 28 races indigenous to the state are laid out in the constitution, references to Sabah’s indigenous races are in a separate document – the Sabah Interpretation (Definition of Native) Ordinance 1958, he said.

“Under federal law, you cannot be a native of Sabah unless you are a citizen of the country. Citizenship is the first prerequisite.

“But in the Sabah ordinance, there is no mention of citizenship and, therefore, the law clashes. And the law is thunderously silent over the matter.”

A Sabah native is defined as “a person who is a citizen, is the child or grandchild of a person of a race indigenous to Sabah and was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth”.

Shad said under Sabah law, there are only five ethnic groups mentioned.

Groups listed as Sarawak natives in the constitution include Bukitan, Bisayah, Dusun, Sea Dayak, Land Dayak, Kadayan, Kalabit, Kayan, Kenyah (including Sabup and Sipeng), Kajang (including Sekapan, Kejaman, Lahanan, Punan, Tanjong and Kanowit), Lugat, Lisum, Malay, Melano, Murut, Penan, Sian, Tagal, Tabun and Ukit.

True natives denied recognition

Shad said in 1958, Sabah’s law on natives was amended to provide that any person claiming to be a native must apply to the native court for declaration of this status.

However, he said, there is no consistent view on the matter and that the law remains divided over the issue until today. 

“Now, the decision of the native court is reviewable in the high court. There’s a good reason for this, as there are a lot of controversies concerning the improper granting of native certificates in the past.

“There are so many cases in which people who don’t have an iota of native blood is given native status,” said Shad, citing Kelantan-born Syed Kechik, who became a Sabah native and gained wealth by virtue of political ties in the state.

In Sabah, the claim of being “native” is often related to privileges like land and money, while thousands of indigenous folks in the hinterland are denied citizenship, he said.

Many of the stateless are victims of systemic injustice caused by structural problems and poverty, which have led to them being denied access to register births and obtain MyKad from the National Registration Department, he added.

“Economic dimension tends to dictate political responses. While we are talking about justice, some are talking about money and land.”

Shad said the NRD must be “Borneonised” to allow the stateless to be granted citizenship without the need to present birth certificates.

Meanwhile, the term “Bumiputera” is neither used nor defined in the constitution but utilised by Sabah politicians to “include those who are not meant to be included”.

He said the definition of a Malay is stated in the federal constitution to mean a person who is Muslim, follows Malay adat and speaks Malay, and is born in Malaya or Singapore (pre-1957).

Thus, he said, there is no way Malays from the Philippines, Thailand and other countries could qualify as a Malay under the constitution. – January 22, 2019.