NATIVE STATUS: OPENING A PANDORA’S BOX

Native status: Opening a Pandora’s Box

March 30, 2012

DAP's Jimmy Wong has been stripped of his native certificate – and this is only the tip of the iceberg.

Sri Tanjung state assemblyman, Jimmy Wong, has finally been stripped of his native certificate – Sijil Anak Negeri – by the Kota Kinabalu Native Court as revealed in the State Legislative State Assembly on March 27.

Although the certificate was found to be genuine, it was not genuinely issued and/or alternatively fraudulently/mistakenly issued by the Native Court since Wong, the Sabah DAP chairman, was on the face of the matter not eligible to hold it.

No date has been set so far for the implementation of the decision, although it was gazetted in December last year, the Sabah state assembly observed.

Apparently, Wong’s mistake, if any, was to claim that he was a Sino-Kadazan.

State Local Government and Housing Minister Hajiji Mohd Noor told the state assembly that a special board appointed by the governor in 2010 found that Wong “did not have even a drop of Kadazan – urban Dusun – blood in him but based on the fact that both his parents were listed as Chinese in his birth certificate”.

Wong had previously claimed in the media that his grandmother, either maternal or paternal, was Kadazan.

He had further claimed that his native certificate was obtained by his elder brother on his behalf, from the Native Court, while he was still studying in England.

It’s not known what supporting documents, if any, were used for Wong to claim native status. The only basis for Wong to win native status from the Native Court would have been his grandmother’s status as a Kadazan, as documented, and not on mere hearsay.

Native land

It’s not known what further punitive measures, if any, will be taken by the authorities or the Native Court against him. Hajiji is leaving the matter in the hands of the Native Court.

Wong has allegedly used his native certificate to hold native land, among others, but it’s not known to what extent.

If it’s true that Wong does not have even a drop of Kadazan blood in him, his mistake may have been in applying for native status on the basis of him being a Sino-Kadazan or Sino, as such claimants generally like to call themselves.

Perhaps the word “Kadazan” sticks in their collective throats.

The Native Court from recorded instances in the past, rare and far between, has declared non-natives who are Momogun as natives (Pasok). There’s even a case law from several decades ago on a pure Chinaman, from China, winning native status in the Native Court on the basis of being a Momogun.

Only non-natives living with and among natives, whether married or otherwise to the latter, can possibly be considered Momogun.

One theory postulated by some adat experts in the past is that it’s merely enough for a non-native to live in the land of the Pasok, that is, Sabah to be considered a Momogun and not in fact live with and/or among the natives.

However, barring exceptional or special circumstances like being married to a Pasok, it’s highly unlikely that anyone who claims to be a Momogun would succeed in law and adat unless he or she lives with and/or among the Pasok, can speak at least 200 words of KadazanDusun (in the standard speech form), and demonstrate that they habitually practise Pasok culture, customs and traditions.

Political hot potato

Wong’s fate mirrors that which awaits thousands of others like him in Sabah who claim to be Sino-Kadazans and similarly hold native certificates from the Native Court. It’s also said that there are thousands of forged native certificates floating around in the state.

However, the onus is not on native certificate holders to prove their eligibility unless challenged like in the case of Wong. His troubles arose when Sekong Samsudin Yahya repeatedly brought up the allegedly dubious status of Wong’s native certificate over a period of six to seven years. His persistence eventually paid off.

The issue of whether Samsudin himself is a native has been raised but so far nothing has come out of it. No doubt this matter, as in Wong’s case, would take another six or seven years to find closure but only if someone persists in raising it in the state assembly. The fear is that a Pandora’s Box may open up here.

It has been alleged during political campaigning in the past and in cyberspace that various personalities were in fact not what they pretended or claimed to be and may have found their way into the state assembly, Parliament and even the governor’s palace in the past on the basis of less than candid revelations and declarations.

Again, this remains a Pandora’s Box to be opened.

Alternatively, the state government could declare an amnesty for all those holding native certificates to which they are either not entitled, forged, or holding it on the basis of applying for native status without claiming to be Momogun.

Those who surrender their native certificates should not be prevented from applying, if eligible, for native status as Momogun.

This is a political hot potato but an issue which needs final resolution considering the “freeze” for many years by the state government on the issuance of native certificates by the Native Court for alleged abuses in the past.

Valid grounds

It has been previously suggested by Federal Minister Bernard Giluk Dompok that only the Native Court, and not the state government, could freeze the issuance of native certificates but only on valid grounds in law.

The decisions of the Native Court are appealable in law to the High Court which functions as the appellate court for the former and, on land matters, for or against the Collector of Land Revenue at the Land Office.

Either way, the Sino-Kadazans in particular and other part-natives by blood are up in arms and want the Native Court to resume the issuance of the Sijil Anak Negeri as soon as possible.

At present, eligible applicants rely on a letter from the Local Government and Housing Ministry, upon recommendation by the Majlis Hal Ehwal Anak Negeri, to claim any benefits as natives.

The National Registration Department (NRD), acting in concurrence with the state governments of Sabah and Sarawak, has meanwhile decided by administration that part-natives will henceforth not be listed as such in their birth certificates and by extension other personal documents. Sino-Kadazans, for example, would have to decide whether they want to be Kadazan or Chinese. They can’t claim to be both.

The part-natives have been lucky so far that no native has had the heart to take the matter to court by way of a judicial review through an order of certiorari to squash the administrative ruling.

Sino-Kadazans, unlike other part-natives, have come out strongly against the recent administrative ruling. They insist on retaining the Sino, to identify with their Chinese heritage as well, and at the same time be accepted and recognised as natives. They have since formed an association to push their cause. It’s as if they want to have their cake and eat it too.

The Native Interpretation Ordinance, like a similar law in Sarawak, and the Federal Constitution have a clear listing of ethnic groups recognised as natives.

Burning question

In Sabah, the natives of the Sulu Islands, once one with the eastern seaboard of Sabah, and the natives of Malaya, Singapore, the Indonesian Islands, Brunei and Sarawak can qualify as natives “provided not subject to immigration restrictions”.

The Federal Constitution does not state the Malay-speaking communities, collectively referred to as Malays, are natives. The Sabah Ordinance clearly refers, among others, to the Orang Asli in Peninsular Malaysia.

Local Muslims in Sabah who had mistakenly had themselves classified as Malay for some strange reason have suddenly found themselves out in the cold when they realise that they can no longer be considered natives of Sabah. Local Muslims are either Dusun, Bajau, Suluk, Irranun, Barunai and similar groups. Except for the Barunai from Brunei and the Dusun, the others are immigrants from the Philippines who came as far back as 300 years ago but many after Malaysia in 1963.

Generally, those classified in Sabah by the NRD as Malay are Muslims from the Philippines, Indonesia and the Indian sub-continent, that is, if they are not listed as they are in their original documents. From having no Malays in Sabah back in 1960, the statistics showed 303,500 Malays in Sabah by 2000, according to the book “Lest We Forget” by anti-illegal immigration activist Dr Chong Eng Leong.

In reality, adat, constitutional conventions and politics will prevent anyone from outside Sabah, except perhaps Sarawak, from being listed as a native.

Former Sabah chief minister Harris Salleh paid a high price in 1985 when he came up with the term “Pribumi”, under the Native Interpretation Ordinance, to include illegal immigrants from across the border as natives of Sabah. His Berjaya Party was humiliated in state polls that year by the 45-day old Parti Bersatu Sabah (PBS) led by Joseph Pairin Kitingan, also the Huguan Siou (Paramount Chief) of Sabah.

Sino-Kadazans, like other part-natives and Malays, are not listed as natives in the Native Interpretation Ordinance and there’s nothing that can be done about this under the law. Non-natives cannot be legislated into law as natives more so since it involves the burning question of native land.

The Sino-Kadazans, for one, are demanding that the Federal Constitution be amended to accommodate their demands. They are barking up the wrong tree. The question is who will bell the cat?

Joe Fernandez