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Sunday, August 8, 2010

MAJOR BLOW TO NRD?




By: JOE FERNANDEZ

SOME 30,000 non-Malaysian Sabahans can heave a collective sigh of relief after the High Court in Kota Kinabalu yesterday ruled against the National Registration Department (NRD) in a major test case involving the Federal Constitution and Sabah, Sarawak rights.

80-year-old grandma, Yong Lee Hua @ Piang Lin, a native from Penampang, had at no time been deprived of her citizenship although she was issued with a MyPR, ruled judicial commissioner Abdul Rahman Sebli.

The court held that the NRD was wrong to have issued Yong with a MyPR after she applied to have her lost MyKad replaced. Abdul Rahman, however, rejected her claim for damages and costs as these ‘had not been proven to the satisfaction of the court’.

"In these circumstances, the plaintiff's claim for damages is dismissed with costs and to be taxed unless agreed," ruled the judicial commissioner.

"This is although she has proven that she is a Malaysian citizen by operation of law and the first defendant (NRD) as wrong in issuing her with a MyPR instead of a MyKad."

Yong was seeking an unspecified amount of damages for mental stress and anguish following the issuance of the MyPR card that had resulted in the loss of her status as a Malaysian citizen.

She said that the NRD took almost two years to replace her lost card to a new blue MyKad and because of that she ‘suffered great anxiety and distress and also suffered loss and damages’.

Just 5 minutes to end headache

Yong's troubles began when she applied for replacement of her MyKad that was lost at a supermarket on Feb 13, 2007. In replacing her MyKad, the NRD issued her with the permanent residence status red MyPR, automatically ending her citizenship status.

She has no birth certificate, the NRD then explained and advised her to apply for citizenship lthough she was a native. They gave her the necessary forms. Her late father who had been born in China, the NRD also explained, had never revoked his Chinese citizenship.

Her plight attracted the attention of then Home Minister Syed Hamid Albar.

The Home Minister landed in Kota Kinabalu on Oct 9, 2008 to assess the situation for himself.

It was reported then that he took only five minutes to issue her with a MyKad to "reinstate her citizenship status" and withdraw her MyPR.

It was public slap in the face for the NRD whose director from Peninsular Malaysia was replaced almost immediately with a local.

Yong claimed in her suit against the NRD that the said red card (MyPR) was illegal and ultra vires the Federal Constitution. She claimed that what the NRD should have done was to replace her lost MyKad as stipulated under Section 13 (1) (3) of the National
Registration Regulations 1990.

Yong said she was born in North Borneo during the British North Borneo chartered Company time, even before the brief British North Borneo colonial period, and when Malaysia was formed, she automatically became a Malaysian citizen by operation of law under Article 14(1)(a) of the Federal Constitution.

Yong also claimed in her suit that she suffered losses such as her bank account being frozen and leaving her with no money to pay the medical expenses for her husband who fell ill in early 2008. She was also unable to withdraw her money to pay for the funeral expenses when her husband died about four months before she filed the suit.

She also had to cancel her trip, already paid for to Jakarta with her church group for a gathering scheduled for Sept 13, 2008 because she could not renew her Malaysian international passport.

A mountain of woes

Yong claimed that she had to borrow money from her children for all the medical and funeral expenses up to a point that she started feeling embarrassed for continuing to depend on her children and her family.

She also claimed that she was affected deeply by the problem that befell her. Her health, according to her claim, deteriorated due to the stress of losing her citizenship and required medical attention. Her mental anguish was reportedly further compounded by her friends' suspicion of her status.

She was afraid to leave her home after her husband passed away, according to Yong's claim, because she felt like a foreigner.

Yong, represented by Martin Idang, filed the suit at the High Court in KK on Nov 4, 2008 and named the NRD director and the federal government as first and second defendants respectively.

Senior Federal Counsel Steve Ritikos represented both defendants.

When asked whether she would appeal against the High Court ruling on damages and costs, Yong said that she would have to discuss her next course of action with her children first.
She was accompanied to the court by her son, Frankie Foo, 52 and anti illegal immigration activist Dr Chong Eng Leong.

"The damages were not our main concern," said Chong. "Our main concern was to tell those old people still alive now that if they were born in Sabah (or Sarawak) before Malaysia Day, and if they do not have a birth certificate but have other evidence of birth, they are citizens by operation of law."

The verbal ruling, noted Chong, stressed that the issuance of a MyPR does not amount to deprivation of citizenship. “The birth certificate is one requirement, but not the only one, to prove that someone was born in Sabah or Sarawak."

According to the Cobbold Commission, Chong continued, any race in Sabah and Sarawak before Malaysia Day are automatically citizens of Britain and its colonies.

"The Federal Constitution Article 14, read together with the second schedule, states that a person who is a citizen of the UK and colonies (in this case Sabah and Sarawak) is the citizen of the federation by operation of law," said Chong. "This is very important although Yong is not in possession of a birth certificate."

Chong had previously publicly pointed out several times that the definition of federation in the Federal Constitution was as per the Federation of Malaya Agreement and not the Federation of Malaysia Agreement.

This, according to him, effectively placed some 30,000 Sabahans in a legal twilight zone as ‘not citizens of Malaysia’. These thousands have either permanent resident or temporary resident (green card) documents from the NRD.

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