Sun, 23 Jun 2024



Of MM2H and the Bornean states: Directive by Federal Ministry merely administrative, cannot be legally enforced in Sabah, Sarawak
Published on: Sunday, June 09, 2024
By: Datuk Roger Chin
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Legislative Framework of the Malaysia My Second Home (MM2H) Programme

The Malaysia My Second Home (MM2H) programme is a long-term visa scheme designed to attract foreign nationals to reside in Malaysia. Primarily seen as an initiative to boost tourism and foreign investment, it is essential to understand whether the programme is supported by a specific legislative framework.

Legislative Basis

The MM2H programme does not have a standalone legislative Act explicitly dedicated to its establishment and governance. 

Instead, it operates under the broader legal framework of Malaysia’s immigration laws, primarily the Immigration Act 1959/63. This Act grants the federal government the authority to regulate the entry and stay of foreign nationals in Malaysia.

The Immigration Act 1959/63 provides the legal basis for the issuance of various types of visas and permits, including those that facilitate long-term stays for foreign nationals. 

The MM2H visa is issued under the powers conferred by this Act, allowing the Immigration Department to grant long-term social visit passes to eligible applicants.

The specific rules, requirements, and procedures for the MM2H programme are outlined in administrative guidelines issued by the Ministry of Tourism, Arts and Culture (Motac) and the Immigration Department. These guidelines cover aspects such as financial requirements, age criteria, health insurance, and other conditions applicants must meet to qualify for the MM2H visa.

Federal and State Dynamics

While the MM2H programme is administered at the federal level, the states of Sabah and Sarawak possess special immigration autonomy under the Malaysia Agreement 1963 and the Federal Constitution. 

This autonomy allows these states to impose additional conditions and manage their own versions of the MM2H programme, such as the Sabah-MM2H (SMM2H).

Sabah and Sarawak have the constitutional right to control immigration into their territories, allowing them to set their own policies and procedures for the MM2H programme tailored to their specific needs and preferences. 

Despite federal oversight, these states can administer their MM2H programmes independently, provided they align with the broader principles of federal immigration law.

Recent Developments

A recent directive from Motac to suspend the processing of new SMM2H applications by all licensed agents, including those in Sabah, highlights the tension between federal authority and state autonomy. This directive appears to be an administrative decision rather than one grounded in new legislation. 

The directive is an administrative measure aimed at regulating the process through which MM2H applications are handled, requiring applicants to use registered agents.

However, this requirement does not appear to be backed by specific legislative changes.

In response, the Sabah Ministry of Tourism, Culture and Environment (KePKAS) has indicated readiness to manage the SMM2H programme independently, asserting its constitutional rights over immigration matters.

Critical Analysis of the SMM2H Programme and Recent Developments

Policy vs. Legislation

The MM2H programme, both at the federal level and the state level (SMM2H), is primarily policy-driven. While policies provide guidelines and frameworks for implementation, they do not carry the same legal weight as legislation. In legal terms, a policy without backing by specific legislation lacks enforceability and may be subject to administrative discretion.

If the MM2H programme is not underpinned by specific legislation, it remains a policy initiative. This means its rules and requirements are subject to change by administrative decision rather than legislative process.

The absence of a specific legislative Act governing the MM2H programme suggests that any requirements or restrictions imposed by Motac could be seen as administrative rather than legal mandates.

Legality of Registered Agents Requirement

Motac’s requirement for applicants to use registered agents, if not supported by legislation, would be an administrative measure. This raises questions about its legal enforceability. If the mandate for using registered agents is not legislated, it is an administrative policy.

Such policies can be contested, especially if they conflict with other legal principles or authorities. The absence of a clear legal basis for this requirement suggests that it is more of an operational guideline rather than a legal necessity, potentially challenging or bypassing under certain circumstances.

Autonomy of Sabah in Appointing Agents

Given Sabah’s constitutional rights over immigration into the state, the Sabah Tourism Ministry has grounds to assert autonomy over the SMM2H programme, especially in light of the federal directive suspending all agents.

Sabah has absolute rights over its immigration policies, which logically extend to programmes like SMM2H. This autonomy could empower the state to appoint its own agents for processing applications. 

The unilateral suspension by Motac of all agents handling MM2H applications, including those in Sabah, appears to infringe on Sabah’s jurisdiction.

If this suspension is viewed as an overreach, Sabah might legally justify appointing its own agents to continue processing applications. 

The Sabah Ministry of Tourism, Culture and Environment has already coordinated with relevant departments and agencies, indicating readiness to manage the programme independently if necessary. 

The directive from Motac to halt the processing of new SMM2H applications highlights the tension between federal and state authorities. 

The crux of the issue lies in the legal basis of the MM2H programme and the extent to which administrative policies can override state autonomy, especially concerning immigration.

Implications and Potential Outcomes Sabah’s Position

Given Sabah’s constitutional rights over immigration, the state has a strong legal basis to argue for its ability to manage the SMM2H programme independently. This includes appointing its own agents to process applications. 

If Motac’s directive is perceived as overstepping federal authority, Sabah may challenge it legally, potentially seeking judicial clarification on the extent of federal versus state jurisdiction over such programmes.

Federal-State Relations

The situation highlights potential conflicts between federal and state authorities over immigration-related programmes. Effective coordination and clear legal frameworks are essential to avoid such conflicts.

Ideally, both parties would engage in negotiations to reach a mutually acceptable resolution, which might involve Motac reconsidering its directive or providing legal clarity on the scope of its authority.

Broader Impacts on MM2H

Investor Confidence

The suspension of the SMM2H programme and the resulting uncertainty could affect investor confidence. Potential applicants may be deterred by the perceived instability and administrative hurdles.

Providing clear and legally backed guidelines for the MM2H programme, both at the federal and state levels, would help restore confidence among potential applicants.

Final Thoughts

The Malaysia My Second Home (MM2H) programme operates under the general legal framework of the Immigration Act 1959/63, supported by administrative guidelines issued by Motac and the Immigration Department. 

However, it does not have a standalone legislative Act dedicated to its governance. 

The special immigration autonomy of Sabah and Sarawak allows these states to manage their versions of the MM2H programme, potentially setting the stage for conflicts when federal administrative directives appear to overstep state jurisdictions.

Moving forward, clear and legally backed guidelines, along with effective coordination between federal and state authorities, are essential to ensure the smooth operation of the MM2H programme. 

Sabah’s constitutional rights over its immigration policies provide a strong foundation for the state to assert control over the SMM2H programme. 

The state could potentially appoint its own agents, challenging the federal directive if it is deemed an overreach. The requirement for registered agents appears to be administrative. 

Without a clear legal mandate, Sabah might have grounds to operate independently in this context, particularly given its established preparations and coordination for the programme’s launch.

Given the constitutional rights and special immigration autonomy granted to Sabah under the Malaysia Agreement 1963 and the Federal Constitution, the state government is well within its authority to proceed with the implementation of the SMM2H programme independently.

The recent administrative directives from Motac should not deter Sabah from asserting its jurisdiction. 

By moving forward decisively, Sabah can ensure the continuity and stability of its SMM2H programme, thereby attracting foreign nationals and boosting local tourism and investment.

It is crucial for the state government to leverage its legal standing and the preparatory work already undertaken to launch the SMM2H programme without further delay, thereby reaffirming its commitment to economic growth and regional autonomy.

The views expressed here are the views of the writer and do not necessarily reflect those of the Daily Express.

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