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Ex-AG: Weakness in State’s Immigration power
Published on: Tuesday, September 17, 2019
By: Sherell Jeffrey

Kota Kinabalu: Former State Attorney General Datuk Stephen Foo (pic) notes a weakness in the system where even though the State Government has been given immigration power to control, it doesn’t have an immigration department. 

 “I understand the State Government can direct the Immigration Director, but if he (director) doesn’t listen to the state then there is a problem,” said Foo, who was among panel speakers invited for the Forum Hari Malaysia 2019 organised by Upko’s Legislative Bureau, here, on Saturday.

He noted that during his time, they had problems because when the State Government directed the then Immigration Director to cancel the pass of somebody they were told that they (the director) need to consult their boss in Kuala Lumpur. 

 He said this when addressing a question from the floor regarding Kad Burung-Burung and the Sabah Temporary Pass (PSS). 

 As for Kad Burung-Burung, he said as far as he knows, the then chief minister’s department used to have a resettlement division. 

 “The resettlement division was trying to … you know during those days the refugees came here, were allowed to stay under the UN Taskforce. So I think the Kad Burung-Burung was issued and was recognised by the immigration department,” he said. 

 He while said a lot of things were done administratively then, the state has not right to issue that sort of thing but once you have the Kad Burung-Burung if the immigration doesn’t take action, it become legal.

 “Our state then has done things administratively without following the law, the Kad Burung-Burung were issued to these people (refugees). If they show the Kad Burung-Burung, the police will say ‘boleh’ because immigration say ‘boleh’, that is why they stayed here,” he said. 

“But the Kad Burung-Burung is not really legal document because the state cannot issue this sort of immigration pass,” he added. Unlike the IMM13 which is recognised as it is issued under the immigration department. 

 He said, perhaps, the current government wants to streamline the matter and have one card, while abolishing the IMM13 and Kad Burung-Burung.

 “I am sure that they will not issue without the consent from the State. I think the Home Minister went to see the chief minister and they must have agreed that the state government will not object to this sort of temporary card.

“Whether it (PSS) is good or not is a separate issue,” he said.

“You do away with the Kad Burung-Burung and everybody who has the Kad Burung-Burung may get the temporary card,” he said. 

Meanwhile, Emeritus Prof Datuk Dr Shad Saleem Faruqi also when addressing the question, is of the opinion that the law on this point has some conflict within and that it is not uncommon for laws to sometimes have conflicts. 

“Let me present both sides of the story under Schedule 9 , I think one of the Federal Constitution , when it comes to citizenship, naturalisation, national registration, visas, passports , permits for entry and signing of international treaties like the refugees convention or genocide convention, all these are federal matters 

 “When it comes to dealing with let’s say Myanmar refugees, and groups of these sort, surely the federal government has a lot of role to play under the Constitution,” he said. 

 He said at the same time when Sabah and Sarawak teamed up with Malaya to form Malaysia, one of the fundamental points was that Sabah and Sarawak should have control over their immigration 

 “Article 1 61e Clause (4) very clearly says entry into the state and residence in the state shall be subject to the control of Sabah and Sarawak as defined by Federal Law,” he said.  

He however pointed out that there is also Section 65 which says that the chief executive that is the chief minister can direct the immigration director general not to issue a permit or pass or a specified description of permit or pass and to order the removal of any specified person.

“It seems to me that even under the Immigration Act the state has the power first of all to refuse entry to Malaysian citizens and the chief minister can direct the director-general of immigration not to admit or issue papers

“It seems that there is some conflict now, on the one hand the state has the power , on the other hand when it comes to international refugees there are international conventions, so I think this is something we have to sort out , conflicts within the laws themselves are not uncommon,” he said.

He said everyone has to sit down and put their heads together on the matter. 

 “If you remember recently when it comes to Zakir Naik, I don’t know if Sabah or Sarawak or both said he is not allowed to enter, Zakir Naik is not a citizen, Zakir Naik is only a Permanent Resident in West Malaysia 

“My answer to your question, there is in the Immigration Act power of the state to regulate, so Federal Government issuing three separate type of documents. I think the definite questions of illegality is there.”



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