KUCHING, Nov 18: Senior lawyer Shankar Ram Asnani said those who try to confuse the real intent of the amendment made to Article 16(2) and are sincere about their Leila and Putri theory, they should file an action in the Court of Law to test the validity of the said amendment.
“If those who tried to confuse the real intent of the amendment made to Article 16(2) are sincere about their Leila and Putri theory, they should file an action in the Court of Law to test the validity of this Amendment.
“My views are purely legal and we can provide more details on what ought to be done should there be a need,” Shankar said in a statement issued here today.
He believed that the recent amendments to Article 16 of the Sarawak Constitution have been misread by certain quarters, thus causing confusion.
“At the heart of matters is the new Article 16(2) that reads: for the purpose of this Article, a ‘resident in the State’ shall mean a citizen: born in the State, where his parents or either of them was also born in the State; and he is normally a resident in the State;
“Or (b) though not born in the State, whose parents or either of them was born in the State, and he is normally resident in the State”,” said Shankar.
He pointed out that the intention behind Article 16(2) is to enable only Sarawakians with Sarawak ancestry (the specific word “born” in the State), to be elected to Sarawak Legislative Assembly (DUN).
“This was expressed by GPS (Gabungan Parti Sarawak) and also by DAP (Democratic Action Party) and PSB (Party Sarawak Bersatu) in the Hansard on Nov 12, 2020,” he said, adding that Article 16(2) restricted further and excludes West Malaysians and Sabahans to be elected to DUN.
On the theory of Leila and Putri as an illustration used by PSB as reported in the local daily recently, Shankar said, there were fundamental flaws in such proposition for the following reasons.
“The authors of the flawed proposition have misread and misunderstood Article 16(2) in its true context. They have also failed to read the Explanatory Notes and the ‘comma’.
“Secondly, Leila’s parents are West Malaysians and though she was born in Sarawak, her parents are West Malaysians (not born in the State) and that makes her a West Malaysian and not a Sarawakian. This is conceded by the proponents of the proposition when they admitted that ‘Leila is a West Malaysian’,” said Shankar.
He believed that what the proposition seriously failed to appreciate is that the prohibition in Article 16(2)(a)(i) & (ii) applies equally to her parents not born in the State and therefore Leila is disqualified from the start.
“And Leila’s parents are not ‘resident’ in Sarawak because they were not born in Sarawak and neither were any of their parents born in Sarawak. This is where the ancestral link is crucial,” he explained.
Shankar, who is also a barrister of the Middle Temple, barrister and advocate of the High Court in Sabah and Sarawak and advocate of the High Court of Malaya, pointed out that since Putri is a West Malaysian, hence she could not quality under Article 16(2)(a) as she is not “born in the State”.
“Though Leila (Putri’s mother) is born in the State, Leila’s parents are not ‘born in the State’ and Leila is not normally resident in the State nor are her parents to bring Putri within the real intent behind Article 16(2)(b).
“Simply, the proponents of the erroneous or fallacious proposition above did not apply their minds to the fact that the new Article 16(2) is equally applicable to Leila and also to her parents who are disqualified right from the start and Putri falls on the same plank of being disqualified in this respect. Once again, this is where the ancestral link is crucial,” he said.
Shankar further elaborated that in the proper and correct interpretation of the Sarawak Constitution, it is important to observe the “comma” in both the Explanatory Statement (i) and (ii).
“The proponents of the proposition must have seriously failed to notice the absence of a ‘comma’ in Explanatory Statement (i) after the words ‘whose parents or either of them was also born in the State and he is normally resident in the State’ which indicate in clear terms that Leila is caught under this category and her parents also are not born and normally resident in the State and so Leila is automatically disqualified from the start as she has no ancestral link and which in turn disqualifies Putri,” he said.
He said, the proponents of the proposition have also failed to notice the absence of a ‘comma’ in Explanatory Statement (ii) after the words ‘whose parents or either of them was born in the State and he is normally resident in the State’ which indicate in clear terms that Putri is caught under this category because Leila is not normally resident in the State.
“Because Leila is caught by Explanatory Statement (i), Putri is automatically disqualified. Even if Leila is not caught by Explanatory Statement (i), Putri is caught by Explanatory Statement (ii).
“However, an objective analysis of the proposition will show that both Leila and Putri are caught by Explanatory Statements (i) and (ii) and therefore those who came up with the proposition misread Article 16(2),” he said.
In conclusion, Shankar said the Explanatory Note to Article 16(2) if read properly would make it patently clear that there is no ambiguity and hence the proposition about Leila and Putri is truly misconceived.
ON related issue, Shankar said the gist of Article 16(2) would operate to bar the step-children of the head of State Tun Abdul Taib Mahmud from becoming members of DUN because they simply have no Sarawak ancestry as their biological parents or either one of them were not born in Sarawak.
“We must congratulate Sarawak Government in this respect for safeguarding Sarawak and tightening the Constitution in this respect,” said Shankar. — DayakDaily
