Published on: Sunday, December 19, 2010Continued suspension of Native Certs is unjust
By: Mohd Fauzi Patel
THE current tussle between Sri Tanjung Assemblyman Jimmy Wong and the State Government on the eligibility of his native status should no longer be seen as his personal problem as some leaders put it.
It has assumed a wider dimension encompassing hundreds of Peranakan families (descendants of couples having had mixed marriages between natives and non-natives) because the Government continues to deny their constitutional right to declare themselves as natives of Sabah.
It is no longer important whether Jimmy is qualified to hold Sijil Anak Negeri (SAN). Let the courts decide his fate.
What is of great concern is the fact that hundreds of qualified Sabahans are also denied the right by suspending the issuance of SAN since 1982.
That is some 28 years ago.
LDP President and Deputy Federal Minister in the Prime Minister's Department Datuk V. K. Liew (in charge of nation's Law Reform Committee) reckons it is time the suspension is lifted because it infringes on Constitutional provisions.
However, State Minister of Local Government and Housing Datuk Hajiji Mohd Noor recently said that the State Government has no intention to lift the suspension now or in the near future.
Instead, he promised to solve the issue in phases.
Therefore, the question arises: How many issues the Government has settled during the past 28 years? How long does a single phase last?
What measures the Government has taken to prevent malpractices in the administration of Native Courts and Native Affairs Department during the past 28 years? Taking such an unusually long period of time is tantamount to frustrating the constitutional right of the people eligible to benefit from the privileges granted to Bumiputras.
The Berjaya Government suspended the issuance of Sijil Anak Negeri in 1982 to streamline the system when it found that the Native Courts - or rather their officials - abused the process by issuing SAN certificates to unqualified persons for pecuniary gains.
It established a committee to study the issue in detail and make recommendations to overcome the problems.
Before the committee could come up with a solution, the Berjaya Government was toppled.
The succeeding PBS Government held a conference to come up with appropriate amendments to the Native Administration statutes.
While it redefined the term "Native of Sabah" by excluding the natives of neighbouring countries, it did not recommend measures to prevent abuse of power and corruption among the Native Court personnel, including the judges.
Again there was a change of Government when the Umno-led Barisan Nasional toppled PBS through large-scale defections. It is now in power for the past 16 years but has hardly done anything to resolve the problem.
Because of lethargy within the Government officialdom, innocent victims of the suspension feel that the inaction on the part of the Government is deliberate.
For the past 28 years they have been deprived of special privileges granted to Bumiputras under the constitutional provisions.
When the Berjaya Government imposed the suspension it was done with the understanding that it was to be temporary.
It, however, is strange that after 28 years the State Government has yet to find a solution to resolve the problems, if any, related to abuse of power and corruption committed by officers of the Native Courts that have been empowered to issue Native Certificates after judicial inquiry.
Those who have been deprived are largely without political connections or influence because those with the right connections still manage to secure scholarships for their children, government contracts and other special benefits.
To put it mildly, this is unfair. Who qualifies to be a Sabah Native?
Native Administrative statutes state that a person one of whose parents or ancestors is or was a native qualify to be a native.
Article 161A of the Federal Constitution defines Native of Sabah as a person who is citizen, is the child or grandchild of a person of a race indigenous to Sabah, and was born (whether on or after Merdeka Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth.
Although the Federal Constitution recognises Peranakans as natives and grants all rights and privileges enjoyed by "pure" Natives, these have been effectively frustrated by the State authorities by suspending the issuance of Native status certificate.
It must be noted that only the non-Muslim Peranakans are required to obtain the certificate to enjoy the Bumiputra rights and privileges.
Descendants of Muslim couples whether involving mixed marriages or not do not require such certificates to claim Bumiputra rights and privileges.
They are automatically defined as Malays.
Why is the status of Sabah Native sought even by Malays from peninsula and natives of Sarawak?
The British created a "Native Title" (NT) land lease for the lands owned by Sabah natives in the State which could not be sold or transferred to a non-native.
The restriction was imposed to protect Sabah natives from more affluent and sophisticated non-natives then who otherwise may buy over the lands leaving natives without any source of food and income to feed and sustain their families.
Because of this NTs could only be sold to Sabah natives.
That resulted in extremely low value of NT lands. It was also impossible to obtain bank loans because financial institutions will not accept mortgages involving NT lands.
To unlock the true value of NT lands, the PBS Government allowed - some believe was a grave mistake because it effectively transferred ownership of NT lands out of native hands for short-term gains - their long-term sublease for development.
Housing developers quickly snapped up some of the titles by leasing them for 99 years.
Padi fields that once dominated the rural landscape were soon replaced by housing estates.
Is it safe for the people to purchase houses by parting with their life-savings since the land will eventually revert to the original owners after 99 years? Only legal experts can answer that.
One of the most famous projects developed on such terms is the Kerambunai resort.
There is a dispute between the landowners and the developer.
When the Government realised that the natives were virtually "selling off" their land by leasing it for 99 years, it imposed a 30-year limit for sub-leasing.
Originally, mostly those who sought status of a Sabah Native were after cheap NT lands.
Among the high profile cases was that of the late Tan Sri Syed Kechik who bought a large number of Native Title lands, converted them into a single Country Lease (CL) title, and planned the Zara project at Kuala Menggatal.
Had that scheme been implemented, it would have given Kota Kinabalu its first prestigious, self-contained satellite town.
Another case that created a stir was that of an Indonesian Chinese named Tan Soe Tie who obtained Native Certificate although he was not qualified.
He arrived in Sabah from Indonesia only in the early 1960s and became close to Donald (later Tun Fuad) Stephens.
But before he could secure NT lands a political storm broke out and he abandoned his plans.
Suspension alone is not the reason that many eligible Peranakans have been facing problems convincing the authorities that they are Sabah natives.
Malay girl clerks taking down particulars of a new born baby for the issuance of birth certificate would not record the baby's race as "Kadazan" because the Sino mother has a Chinese name.
The baby gets a birth certificate that states its race as "Chinese".
The child then loses his or her native status and faces a life-long struggle to prove it otherwise.
However, if the clerk happens to be Sabahan, she would understand and would record without questioning that the child is a Kadazan.
There are cases, therefore, where in a single family there are brothers and sisters with native and non-native classification.
The same happens to those with names that have "bin" or "binte" in the birth certificate because they are classified as "Muslims" by the National Registration Department.
No amount of explanation given to NRD officials from Kuala Lumpur would convince them that the person with a name having "bin" or "binte" is a Christian in the case Sabah.
The Department simply states that the holder of the Identification Certificate (IC) is a Muslim, and thus play God.
They cannot imagine that during British rule it was common among many kampong people to use bin and binte in their children's name, the way Malays and other Muslim ethnic groups used.
There were no ICs then and nobody doubted the person if he claimed to be a Christian or Buddhist.
How does the suspension adversely affects those who qualify to hold Native status certificate?
Their children will lose the opportunity to obtain government study awards. They also will find it difficult to join a public tertiary institution, particularly the one reserved for Bumiputras. After graduating, the children may not be able obtain jobs in the public sector.
Those who wish to participate in business will not be able to benefit from contracts reserved for Bumiputras. They will also not be able to obtain special quota of shares from the newly listed companies.
In addition, they will not be able to secure 5 per cent discount on residential property if they purchase any. They will also lose the privilege to obtain loans on easy terms.
They will miss out on scores of benefits offered by the Government under its affirmative action policy.
The most daunting difficulty they face is the transfer of NT lands owned by a deceased person to his heirs because they have lost the right to own NT lands. What can be done to resolve the problems?
The Government's attitude does not inspire confidence. Yet the victims continue to apply and appeal to obtain the native status.
A niece of one of the first Unko MPs after independence from Penampang who is married to a prominent businessman has been trying to obtain a Native Certificate for herself and her three sons for years.
When she called on the Director of Native Affairs Department not long ago to enquire about the certificates, he simply pointed at a mountain of files waiting to be dealt with and said it would take years to clear the backlog.
She hopes her file would not go missing!
The politicians should bear in mind that the suspension of Native status certificates is unjust because it penalises the innocent while the guilty ones get away scot-free.
The State Government should act against those who are corrupt and have abused the native affairs administration. All citizens should respect, honour and defend the Constitution.
Was it not that what was pledged by the BN leaders to do at the recent party convention?