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THE controversy surrounding the Malaysia Border Control and Protection Agency (“AKPS”) has often been framed by Putrajaya as little more than an administrative reform designed to improve coordination and strengthen border security. But that framing misses the point entirely. 

The unease in Sabah does not stem from opposition to stronger enforcement or better inter-agency cooperation. It stems from something much deeper: the growing fear that another constitutional safeguard promised at the formation of Malaysia is slowly being absorbed into federal control through institutional restructuring dressed up as administrative modernisation.

For many Sabahans, AKPS is not viewed in isolation. It is viewed through the accumulated experience of six decades in which powers, safeguards, and promises that once appeared secure gradually became diluted through federal agencies, overlapping jurisdictions, harmonisation exercises, and operational centralisation. Rarely were those changes presented openly as constitutional erosion. More often, they arrived incrementally, justified as efficiency, coordination, standardisation, or national integration.

That historical memory matters because Sabah was never intended to be merely another ordinary state within a highly centralised federation.

Sabah did not enter Malaysia merely as an ordinary state within the existing Federation of Malaya in 1963. Sabah became part of the Federation of Malaysia under a negotiated constitutional arrangement that recognised the profound political, demographic, and historical differences between the Bornean territories and the Federation of Malaya. The safeguards negotiated before Malaysia was formed were therefore not symbolic political assurances.

They were structural protections intended to preserve Sabah’s autonomy in areas considered essential to its long-term political security and self-governance.

Among the most important of those safeguards was immigration autonomy.

Sabah’s Immigration Powers Are Part of the Constitutional Structure of Malaysia

One of the biggest misconceptions in public discussions surrounding AKPS is the assumption that Sabah exercises immigration powers merely because the federal government administratively allows it to do so. That is not legally accurate.

Sabah’s immigration powers arise from the constitutional arrangements upon which Malaysia itself was founded. They are rooted in the Malaysia Agreement 1963 (“MA63”), reflected in the Federal Constitution, and operationalised through Part VII of the Immigration Act 1959/63.

These powers are therefore not ordinary administrative privileges which may simply be adjusted whenever federal policy changes. They form part of the constitutional balance upon which Sabah agreed to form Malaysia.

Article 161E of the Federal Constitution is especially important in this regard. The provision forms part of the constitutional safeguard structure protecting the special position of Sabah and Sarawak within the Federation. While Article 161E does not itself create Sabah’s immigration powers, it provides constitutional protection against certain legislative changes affecting safeguards relating to Sabah’s special position, including immigration arrangements reflected in Part VII of the Immigration Act 1959/63.

That distinction matters enormously because it means Sabah’s immigration autonomy was never intended to exist merely at the pleasure of the federal executive or as a revocable administrative arrangement subject to changing political preferences in Putrajaya.

Even today, the practical effect of those protections remains remarkable within any federation. Malaysian citizens from Peninsular Malaysia do not possess an unrestricted right to enter Sabah. Sabah may require permits and passes. It may impose conditions upon residence and employment. It may deny entry altogether to individuals considered undesirable to the State’s interests.

No state in Peninsular Malaysia possesses powers remotely comparable to this.

That exceptional position did not arise accidentally. Sabah’s leaders in the early 1960s understood very clearly that demographic control and political autonomy were inseparable. Sabah’s population was small, its institutions were still developing, and there were genuine fears that unrestricted migration and unchecked federal dominance could fundamentally reshape Sabah’s demographic and political landscape within a generation.

Immigration autonomy was therefore never merely about border administration. It was about preserving Sabah’s ability to protect its own political stability, labour market, demographic balance, and social harmony within a federation where the federal centre would inevitably possess overwhelming institutional power.

That is why immigration powers became one of the key safeguards upon which Sabah agreed to form Malaysia in the first place.

Why AKPS Triggers Constitutional Anxiety

Against this background, it becomes easier to understand why AKPS has generated such strong concern in Sabah.

The Malaysia Border Control and Protection Agency Act 2024 establishes AKPS as a federal integrated border enforcement agency. Under section 6 of the Act, the Agency is empowered to enforce laws relating to the inspection and control of persons entering and leaving Malaysia, inspection of goods, quarantine functions, surveillance, intelligence gathering, investigations, and the issuance of passes and permits. Section 7 further grants AKPS officers all the powers exercisable by the relevant competent authorities under federal law.

In practical terms, AKPS creates a centralised federal border management structure consolidating multiple enforcement functions under a single operational framework.

The federal government has repeatedly argued that Sabah’s immigration powers remain intact because section 6(3) expressly states that, in Sabah and Sarawak, the Agency must comply with directions given by the State Authority to the Director of Immigration of Sabah or Sarawak pursuant to Part VII of the Immigration Act 1959/63.

But many Sabahans believe this response fundamentally misunderstands the nature of the concern.

The issue is not whether Sabah may continue issuing directions on paper. A constitutional power means very little if the machinery exercising it no longer answers meaningfully to Sabah.

That is the real anxiety surrounding AKPS.

The concern becomes even more acute when one examines how section 6(3) actually operates in practice. While the provision states that AKPS must comply with directions given by the State Authority to the Director of Immigration of Sabah or Sarawak pursuant to Part VII of the Immigration Act 1959/63, the operational structure still places implementation within a federally controlled hierarchy headed by federally appointed officers.

That structural arrangement matters constitutionally. Previously, directions issued pursuant to Part VII of the Immigration Act operated within the existing immigration enforcement framework itself. Under AKPS, however, implementation now occurs through an additional federal integrated agency structure operating within a federally controlled command hierarchy. Many Sabahans therefore fear that this introduces an additional institutional layer between the State Authority and the operational machinery exercising immigration powers within Sabah.

Sabah’s protected immigration autonomy was never merely about preserving symbolic formalities or nominal statutory wording on paper. It was intended to ensure that Sabah retained meaningful control over the exercise and implementation of immigration powers within the State itself.

This raises difficult but legitimate questions. If operational implementation now depends upon an additional federally controlled institutional structure, and AKPS were, in practice, slow to implement, selectively interpret, or fail to fully comply with directions issued pursuant to Part VII of the Immigration Act, what effective mechanism would Sabah realistically possess to enforce compliance?

That is precisely why many Sabahans do not regard section 6(3) as a complete constitutional safeguard merely because the statutory wording formally preserves the role of the State Authority. Constitutional safeguards are not measured solely by whether powers continue to exist textually. They must also be assessed by examining where practical control, operational authority, and institutional accountability actually reside.

The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express. If you have something to share, write to us at: Forum@dailyexpress.com.my