KUCHING, Nov 11: Is the amendment to Article 16 of the Sarawak Constitution upholding Sarawakians’ rights or a guise to further derogate it, asked PKR Sarawak secretary and PKR Kuching Branch Women chief Cherishe Ng today.
She said, the amendment bill tabled by Datuk Abdul Karim Rahman Hamzah yesterday to define “resident in the State” under Article 16 of the Sarawak Constitution to mean a citizen belonging to the State of Sarawak in accordance with Section 71 of the Immigration Act 1959/63 (Act 155) would effectively grant a resident who has resided in Sarawak for only 2 years to be capable of standing as a member of the State Legislative Assembly (DUN).
“If, however, the intention is to further clarify the term ‘resident in the State’ under our Sarawak Constitution, the amendment should not have to adhere to the Immigration Act and can easily be defined in the Sarawak Constitution itself.
“To define it in accordance with the Immigration Act is an unnecessary move and seeks to destroy the sanctity of the Sarawak Dewan Undangan Negeri by explicitly allowing non-Sarawakians to be our State representative.
“It will not serve to advance our Sarawakian rights and in fact, will diminish it because with this amendment, non-Sarawakians who have only resided in Sarawak for 2 years are capable of being State Representatives. If the Sarawak Government is intent on upholding its promises to further Sarawakians’ rights, any amendments to define ‘resident of the State’ should be tread carefully as it may derogate Sarawakians’ rights even further,” Ng said in a statement issued here yesterday.
She added that Abdul Karim yesterday explained that the amendment to Article 16 was necessary in order to align the Sarawak Constitution with Article 71(4) of the Federal Constitution.
“He also cites Part I of the Eighth Schedule whereby any State Constitution must have the essential provisions as provided under the Eighth Schedule of the Federal Constitution. In other words, every State Constitution must include the provisions under the Eighth Schedule.
“To this, I say, there is absolutely nothing within Article 16 of the Sarawak Constitution that in inconsistent with Article 71 of the Federal Constitution nor with the Eighth Schedule.
“If we look at Section 5 of the Eighth Schedule and compare it with our Article 16 of the Sarawak Constitution, the wordings are to a large extent in pari materia (that is to say, it is word by word the same). The only difference is that Section 5 of the Eighth Schedule refers to section 6 for disqualification, while the Sarawak Constitution refers to Article 17 for disqualification – both refer to the same thing and it is a negligible difference,” she said.
Ng asserted that the Immigration Act is a child of the Parliament while the Sarawak Constitution is not.
“Forcibly trying to bring the definitions under the Immigration Act into the Sarawak Constitution may bring about repercussions which may destroy the very right of which GPS now claims to protect, which is the right of Sarawakians to contest as a member of the Sarawak DUN.
“If anything, should the amendment to Article 16 of the Sarawak Constitution be bulldozed through, the amendment is easily challengeable as unconstitutional as Article 75 of the Federal Constitution provides that should there be any inconsistencies between a State law and Federal law, the Federal law would prevail and the State law shall be void to the extent of the inconsistency.
“Why should our Sarawak Constitution be amended to further erode our rights under the guise of ‘bringing our Sarawak Constitution in line with the Federal Constitution’ when in fact, there is nothing inconsistent?” she asked.
She further asked if the term “resident in the State” in Article 16 of the Sarawak Constitution has to be defined, it cannot be in accordance with Section 71 of the Immigration Act 1959/63.
“For one, Section 71(1) of the Immigration Act in and of itself specifically states that the provision is for the purposes of Section 66 only. In fact, the entire section starts with those opening words. This means that the definition provided for under Section 71 is exclusively for the use of construing Section 66 only,” said Ng.
Meanwhile, she explained that Section 66 relates to the entry of a citizen of Malaysia into an East Malaysian State.
“Section 66(1)(a) states that if a person belongs to the East Malaysia State, he shall be entitled to enter that East Malaysia State. Section 71(1) is an explanation to the term used in Section 66 in that a person belongs to an East Malaysian State if (a) he has within 2 years been a permanent resident in that particular East Malaysian State.
“To put it simply, Section 71 explains that when a person has been a permanent resident in Sarawak for 2 years, he can enter Sarawak freely without any restrictions. Section 71 is very clear in that such a definition only applies to construe the wordings used under Section 66 relating to entry into Sabah and Sarawak,” said Ng. – DayakDaily
