Written by Geoffrey Jerry J Mosiol, a third-year law student of the Faculty of Law, University of Malaya.
Edited by Law Chi Kay and Phua Syuen Yue.
Reviewed by Luc Choong and Celin Khoo Roong Teng.
Immigration policies in Malaysia are not in a satisfactory state. Fuelled by the uncertainty of new policies and political elements, Filipino migrants suffer from the state of turbulence. Amidst the chaos, where do these migrants stand?
The issue of immigration pinches the right thigh and it is only fair if the left thigh feels it too. For people of the West, this issue should not be brushed aside merely because they are spared from it. Immigration matters have always been a concern in Sabah, yet insufficient discourse is being made at the national level. Although most asylum seekers and refugees are allowed temporary stay in Sabah on humanitarian grounds, the problem still lingers on. The foundation of the Malaysian immigration policy is based on an ad hoc basis, albeit not arbitrarily. Certain motivations urge such behaviour — for example, political purposes. In Sabah’s context, motivations arose from the political instability that plunged the state in the past and up until today. Constitutional law expert Professor Andrew Harding even went to the extent to describe Sabah as the ‘most politically unstable part of Malaysia over many years, evidenced by successive constitutional crises and ensuing litigation’. The year 2020 has seen yet another political strife and its evident implications on both the state and federal government in formulating immigration policies. Hence, it is vital that lessons from the mistakes of the previous government are learnt to solve the unending immigration issues in Sabah. With that, this article seeks to dissect the preceding and current immigration policies with a special focus on Filipino migrants in Sabah.
II. ONGOING POLICIES: PAST TO PRESENT
In the 2018 general election, Pakatan Harapan vowed to ratify the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, and to protect refugee rights in compliance with international standards. Unfortunately, this pledge fell short of expectations. Up to date, Malaysia is still not a signatory to this treaty and its 1967 Protocol. To aggravate the issue further, Malaysia does not have any specific legislation overseeing refugees. The protection of refugees is yet to be institutionalised, and refugees are still regarded as ‘illegal’ immigrants who enter Malaysia without proper documentation. For now, the primary legislation governing immigrants is the Immigration Act 1959/63. It is common for refugees to find themselves heavily regulated under this Act and placed under the jurisdiction of the Ministry of Home Affairs. For instance, S.6 of the Immigration Act provides grounds for legal entry and imposes harsh punishment if the grounds were to be contravened. The lack of aid for refugees prompted the involvement of the United Nations High Commissioner for Refugees (UNHCR), which concentrates on managing reception, registration, documentation and status determination of refugees. However, according to international law, refugees are only granted de facto status by UNHCR in Malaysia. Reports jointly made by the International Federation for Human Rights (FIDH) and Suara Rakyat Malaysia (SUARAM) in 2008 discovered a limbo in the actual status of these refugees and cited ambiguity in the conduct of authorities.
Before elucidating further, a distinction has to be made on the refugees’ status in East and West Malaysia. In West Malaysia, refugees are categorised as ‘refugees’ with resettlement plans coordinated by the UNHCR. As of December 2019, there are approximately 178,580 refugees in Peninsular Malaysia registered under UNHCR. On the other hand, refugees in Sabah (in this context, Filipino migrants) had their refugee status terminated by virtue of a peace treaty signed by the Filipino government and Moro Liberation Front in 1976. Shreds of evidence indicate that the refugees in Sabah are excluded from UNHCR Kuala Lumpur’s Factsheet on Refugees due to the closure of its Sabah sub-office in 1987. In substitute, the Sabah government subsequently issued residency visas. The holders of visas were allowed to apply for permanent residency upon completing a prerequisite stay of 15 to 19 years. In other words, the refugees obtained permanent residency by naturalisation.
Sabah has multiple documents to record information on refugees, especially those escaping the turmoil in Southern Philippines back in the 1970s. These documents are namely IMM13, Census certificate and Kad Burung-Burung. Recent records showed that 51,645 IMM13 holders, 47,518 Census certificate holders and 36,892 Kad Burung-Burung holders were registered in Sabah. Regrettably, there is very little information available on Kad Burung-Burung and Census certificate holders. At most, the former was mainly issued to economic immigrants by the Office of Chief Minister in the 1980s, whereas the latter was issued by the Federal Special Task Force and National Security Council in the 1990s.
The name ‘Burung-Burung’ holds a unique significance — it came about as a reminiscence of the birds imprinted on the document, which was possibly derived from the old state’s crest. Kad Burung-Burung documents were issued during a census exercise done in settlements like Telipok, Kinarut, Kampung Bahagia in Sandakan, Kampung Selamat in Semporna and Kampung Hidayat in Tawau. The immigrants resettled under the purview of the Settlement Unit in the Chief Minister’s department established in 1976, and those who had undergone census were given a temporary identification receipt.
Furthermore, one of the most frequently issued and discussed documents is the IMM13 permit. IMM13 is a temporary residence permit. This 2-year permit is renewable and each renewal costs between RM162 and RM180. In the absence of the Refugee Convention or other effective legislation at the national level, the IMM13 permit is the refugees’ saving grace. Back in the 1970s, this permit was issued to Sabah and Labuan’s Filipino refugees who escaped the conflict brewing in the Southern province of the Philippines.
The Minister of Home Affairs plays a vital role in issuing IMM13 permits. Empowered by S.55 of the Immigration Act, the Minister can exempt persons from provisions of the Act and may provide for any presumptions necessary to give effect. As such, the IMM13 permit issued by the Minister exempts the holders from the provisions of the Act and furnishes the holders with the right to engage in lawful employment and to register their children at government schools. It was said that the Minister’s decision to issue the permit is based on information and reasons provided by the applicant who seeks an exemption under S.55. However, in practice, the unchallengeable decision is purported to be based on unknown criteria. The Minister may issue the permit based on any condition he deems sufficient. There is no way to examine this decision — the fact that it operates on the basis of unfettered discretion renders the decision unreviewable.
III. A PROPOSED POLICY: PSS AND THE U-TURN
In the midst of rising dissatisfaction with the potential for abuse of power attributed to the Minister’s absolute autonomy in immigration matters, the Committee on the Management of Foreign Nationals in Sabah (JKPWAS) — being well-informed on the issue — joined forces with the Sabah State Government in implementing the Sabah Temporary Pass (PSS) to replace the long-standing IMM13 permit. In this new scheme, the Sabah Immigration Department bears the responsibility of executing PSS. The pass was proposed to be introduced in June 2020 and priced at RM120, debuting alongside new biometric safety features, photo identification and fingerprint recognition software. It ensures centralisation and uniformity of the identification procedure among immigrants. However, this scheme did not materialise as the Sabah State Government cancelled PSS following a political defeat. Although the execution was halted, simulations planned were still scheduled to be executed by the state government. Ex-Deputy Home Minister Datuk Mohd Azis Jamman revealed a two-day simulation to be conducted in Sabah to identify areas of improvement for the registration procedure. So far, there have been no reports on the execution of the simulation.
After the infamous Sheraton Move, Perikatan Nasional’s brand new Home Minister, Dato’ Seri Hamzah Zainudin proposed the standardisation of identification documents for immigrants. The proposal involves abolishing other extraneous documents apart from IMM13 permits. It was hoped that the process of sending Filipino refugees back to their home country would be smoother if only one document is used to facilitate identification. As an alternative, if the refugees managed to obtain valid documentation from their country of origin, the government will allow their stay in Malaysia with valid documents as foreigners.
In the present, there is a major crackdown on these refugees. The COVID-19 pandemic had given the government justification to set up an operation — Op Benteng Covid-19.  The operation has identified 37 landing points for illegal immigrants. There have been multiple reports that thousands of Indonesians and Filipinos have been deported in this pandemic alone.
IV. THE UNRESOLVED ISSUE: IRREGULARITY AND POLITICS OF RECOGNITION
In 1976, the Home Ministry issued the predecessor of IMM13, the HF7 permit, with the support of the then Sabah Chief Minister, Tun Mustapha on ‘humanitarian grounds’. However, problems arose when there were contentions that the permit was issued arbitrarily due to political reasons. There were assertions that such a move was made because of Tun Mustapha’s ancestry, which purportedly obligated him to assist his kin. It was also speculated that Tun Mustapha did so only to increase the dominance of his Islamic political party — United Sabah National Organisation (USNO). Another testament to the arbitrary issuance of IMM13 can be seen with the Acehnese refugees in Sabah. It is not a far leap for one to conclude that the Acehnese refugees, similar to the Southern Filipino Muslims, were war refugees granted with special permits for political mileage. It was opined that illegal entry of economic migrants, terrorists and other criminals via document fraud occurred mainly due to a weak documentation system. This would possibly imply a potential massive electoral fraud that implicates political democracy. 
In Sabah, the diminishing native population of certain ethnic groups that were previously the majority, i.e. the Christian Kadazandusun-Murut community has fallen to a mere quarter of the overall population. As a result, the influence of aforesaid locals supporting certain political parties diminished, whereas the other parties thrived from the support of alleged phantom voters formed by Filipino migrants. This led many to believe that the inequality was perversely utilised for political gains, as per Dr Alice Nah, a lecturer at the Centre for Applied Human Rights at the University of York. Lia Syed, a former consultant of the Malaysian Strategic Research Institute, also mentioned that a ‘gold class’ of refugees was formed, creating a category of people with more rights.
Apart from disputes arising from its inauguration, the law governing IMM13 permits has a legal lacuna. The lacuna technically enables an indefinite renewal of the pass, even if the reasons for renewal were no longer valid. For example, the refugees who escaped the Mindanao Insurgency were allowed to renew their passes even after the incident ended. Nonetheless, about half of them did not renew the pass. The government assumed those people dead or returned to their home countries.
Tentatively, the refugees are entitled to apply for a formalisation of their Filipino citizenship upon receiving the IMM13 pass. However, obtaining foreign citizenship comes with costs. These foreign citizens would need to bear visa and permit fees to work or live in Malaysia. Hence, even if they are entitled to do so, most would prefer to be in the legal limbo of carrying the IMM13 pass and settle for a biannual renewal. This is particularly true for most descendants of the original migrants who fled from their country to Sabah. The descendants were born in Malaysia, and it is understandable that they have no desire to return after spending their whole lives within its boundaries. However, these people live in a state of uncertainty as they remain as IMM13 holders. They are neither considered Filipinos nor Malaysians. Their position is made direr with various other procedures done without registration or acknowledgement from enforcement agencies — including informal adoption, family dispersal and loss of documents. The issue becomes even more complicated when tactical acquiring or borrowing documents, syndicates of theft and scam come into play. Without the knowledge of the law, the descendants are at the mercy of malicious schemers.
Another major hurdle in policy formulation is security concerns. In the 2000s, terrorists from a Moro separatist group known as Abu Sayyaf frequently kidnapped foreign tourists and Malaysians. The 2015 invasion and stand-off of the Sulu army at Lahad Datu has always been regarded as the breaking point where national security and sovereignty were at stake. In the trial against the intruders, two naturalised Malaysians pleaded guilty to their charges. It was regarded by many that there are enemies amongst us, as stated by the Director-General of ESSCOM (East Sabah Security Command) Datuk Mohamad Mentek in a dialogue with some 80 other Kadazandusun leaders.
Furthermore, Datuk Seri Dr Shahidan Kassim, a Minister in the Prime Minister’s Department, mentioned that security agencies had taken various measures to stop locals from supplying intelligence that could harm the nation’s security. Existing evidence points towards locals and illegal immigrants having conspired to provide information to intruders during the invasion in Lahad Datu and various abduction incidents in Sabah. Datuk Seri Dr Shahidan admitted that some locals played a part in the invasion of the east coast of Sabah, abduction and cross-border crimes. This could be attributed to familial or economic ties of the locals with their counterparts over the border. Historically, the Royal Commission of Enquiry had in its report confirmed the cultural link between Sabah and Sulu Archipelago as early as the 15th century, where the Sulu Sultanate exerted its political and social influence on Sabah. Despite the geopolitical division, this influence withstood the test of time. The alleged territorial claim was thought by immigrants to be still strong, which led to the invasion that was seen as a historical privilege or right by the invaders and their advocates.
V. THE RESOLUTION
When great discretionary power given to bureaucrats is coupled with weak mechanisms to eradicate corruption, there is a high potential for abuse of power. This concern was further aggravated by the inconsistent immigration policy when Pakatan Harapan took over from the previous Barisan Nasional government.
Additionally, S.59A(1) of the Immigration Act is equally problematic. The provision explicitly excludes judicial review on actions or decisions made by the Minister, Director-General, East Malaysia States and State Authority except in issues related to procedural requirements or regulations of the Act. This effectively means that the government has unchecked authority to formulate policies and liberty to act upon as it wishes. The court in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan was firm on the implementation of the ouster clause, especially with respect to S.59A(1) of the Immigration Act which clearly spelt out the exclusion of judicial review. It was further held in the case of Ambiga a/p Sreenevasan v Director of Immigration, Sabah, Noor Alam Khan bin A Wahid Khan & Ors that since the words within the statute are unambiguous and plain, it supports the conclusion that the jurisdiction of the courts is ousted due to the clear intention of Parliament. Criticisms are prevalent that this should not be the case considering the recent trend that the courts have the jurisdiction on judicial review. This judicial power is part of the basic structure of our Federal Constitution as seen in Justice Tan Sri Datuk Zainun Ali’s (as Her Ladyship then was) decision in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & another. Datuk Seri Gopal Sri Ram noted that the Parliament and state legislatures could not enact any law that interferes with the power of judicial review vested in our courts. It is, therefore, a new epoch of our nation’s immigration policy if amendments could be made to allow judicial review on the immigration policies. This will promote accountability and encourage the formulation of better and more pragmatic policies and measures.
Malaysia must consider signing the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. The dilly-dally approach by merely countering immigration issues on an ad hoc basis must be halted. It is wiser to have long-term policy initiatives that build upon mechanisms to address this cross-cutting issue through holistic solutions. The Convention is an international refugee and humanitarian law which constitute a part of human rights law to safeguard people in harsh circumstances, e.g. armed conflicts and oppression. This would provide the UNHCR with an official status instead of its current de facto status in aiding the government to absolve the issues. Apart from that, this approach would also enable the enactment of a legislative and administrative framework for better treatment and protection of refugees and asylum seekers as well as the establishment of appropriate mechanisms to receive, register, process and document these people. This, in its very core, is a beneficial outcome as the past and current policies have been done via arbitrary and unsystematic measures. Proper documentation and due process would avoid irregularity and prevent these communities from slipping through the cracks, hence allowing better enforcement of the law for the security and safety of the nation.
It should be clear that political mileage was earned out of the innocence and vulnerability of Filipino migrants. The reality is that no comprehensive solution could remedy the problem instantly. While the UNHCR’s suggestion on acceding to the Convention and Protocols seems to shed some positive light, a quicker alternative would be for the Royal Commission of Inquiry on Illegal Immigrants to suggest establishing a Permanent Secretariat, Management Committee on Foreigners or Consultative Council on Immigrants/Foreigners. This would be a less drastic step which allows for more engagement and understanding before the formulation of a definitive policy.
In the past, Malaysia had taken upon deportations and questionable treatment towards migrant communities such as depriving them of their basic human rights. Professor Dr Azizah Kassim from the Institute of Malaysian and International Studies (IKMAS) opined that harsh policies have adverse effects on these communities and the state of Sabah at large. While Professor Dr Azizah Kassim agrees to weeding the refugees from economic migrants, it was shown that the communities had contributed largely to the boom of Sabah’s development. As we end this article, we should ponder on her words:
‘We were well received by their community leaders and others, and some opened their doors to us to let us see their sparse homes, and in spite of their poverty they offered us food and drinks’.
These communities are victims of circumstances, especially when the Filipino refugees in Sabah are victimised by both the source country and Malaysia for their failure to resolve the refugee problem over the past three decades. As a matter of course, it is only right if we show a bit of humanity and formulate policies in the best interest of all parties.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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 Notwithstanding anything contained in this Act, the Minister may by order exempt any person or class of persons, either absolutely or conditionally, from all or any of the provisions of this Act and may in any such order provide for any presumptions necessary in order to give effect thereto.
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 See footnote 23 above.
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 See footnote 18 above.
 See footnote 26 above.
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 See footnote 37 above.
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 See footnote 34 above.
 See footnote 11 above.
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 See footnote 37 above.
 See footnote 37 above.
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 See footnote 45 above.
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 See footnote 34 above.
 See footnote 11 above.
 See footnote 11 above.
 There shall be no judicial review in any court of any act done or any decision made by the Minister or the Director General, or in the case of an East Malaysian State, the State Authority, under this Act except in regard to any question relating to compliance with any procedural requirement of this Act or the regulations governing that act or decision.
 Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan  4 CLJ 105.
 Ambiga a/p Sreenevasan v Director of Immigration, Sabah, Noor Alam Khan bin A Wahid Khan & Ors  1 MLJ 633.
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 See footnote 11 above.
 See footnote 11 above.
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 See footnote 45 above.
 See footnote 18 above at 363.
 See footnote 52 above at 62.
 See footnote 52 above at 81, 82.
 See footnote 52 above at 84.
 See footnote 52 above at 79.
 See footnote 52 above at 77.