Datuk Gerawat Gala
MIRI: State Legislative Assembly (DUN) Deputy Speaker Datuk Gerawat Gala yesterday clarified that the amendment to the Sarawak constitution was necessary so as not to allow the provision to be exploited by persons who do not belong to and are not loyal to Sarawak and do not have the interest of Sarawakians at heart to seek election to the august House.
Gerawat in a statement pointed out that there has been a lot of public discourse over the amendment to the state constitution, propagated by Democratic Action Party (DAP) and Parti Sarawak Bersatu (PSB), regarding the qualification of membership of the DUN.
“Both DAP and PSB put their own interpretation and spin on the amendments to support their frivolous allegations that the amendments have opened the door for non-Sarawakians to take part in state elections and become a member of the DUN.
“Article 16 of the State Constitution follows the mandatory provisions in the Eighth Schedule of the Federal Constitution which a State Constitution must adopt. Any deviation from these mandatory provisions would make the deviant provisions unconstitutional, null and void,” said Gerawat.
Thus, he said Article 16 could not be amended to make it different from Clause 5 of the Eighth Schedule of the Federal Constitution where the term ‘resident in the State’ is requirement for election as a state assemblyman.
Gerawat said under Article 16 of the State Constitution, one of the qualifying requirements for membership of the DUN is that the person must be a citizen who is ‘resident in the state’.
The term ‘resident in the state’, he pointed out, is not defined in the State and Federal Constitutions.
“Since the Dewan can determine its own membership, it has the power to define what the expression ‘resident in the state’ means.
“The term ‘resident in the state’ in Article 16 of the State Constitution if left unamended means any Malaysian, even though he is not born in Sarawak or who has no Sarawak connection, can stand for election to the DUN so long as he is a resident in the state.
“This can allow a Peninsular Malaysian having temporary residence in Sarawak to become a member of the DUN.”
Hence, he said the Gabungan Parti Sarawak (GPS) government wants to plug this ‘loop-hole’ so as not to allow this provision to be exploited by persons who do not belong to and are not loyal to Sarawak and do not have the interest of Sarawakians at heart, to seek election to the DUN.
He explained that the amendment only recognises two categories of persons who qualify as ‘resident in the state’, namely citizens who are born in the state whose parents or either of them is born in Sarawak and he must be normally resident in Sarawak (Category A); and citizens, though not born in Sarawak, his parents or either of them are born in Sarawak and he must be normally resident in Sarawak (Category B).
“Category A applies to citizens who are (i) born in Sarawak; (ii) both or one of his/her parents are born in Sarawak; and © he must be normally resident in Sarawak, while Category B applies to citizens who are (i) not born in Sarawak; (ii) both or one of his parents were/was born in Sarawak, and (iii) he must be normally resident in Sarawak,” he said.
He added that Category B is intended to cover the situation where a citizen is born outside Sarawak to parents either both or one of whom were/was born in Sarawak.
“This happens when such child’s parents are working or studying or temporarily living outside Sarawak, such as in Peninsular Malaysia, United Kingdom and et cetera for work or education.
“If such child returned to live in Sarawak, can anyone in good conscience say that such a person should be barred from standing for election to the DUN? He has all the attributes of a ‘Sarawakian’,” explained Gerawat.
He also explained that Category B does not include children born outside the state but adopted by a Sarawak-born person.
This is because the expression ‘parent’ must be interpreted in alignment with a similar term in the Federal Constitution such as Article 14 regarding citizenship, he added.
“The Court of Appeal ruled in Pendaftar Besar Kelahiran dan Kematian Malaysia v Pang Wee See & Anor (2017) 7 CLJ 33 that the word ‘parent’ does not extend to adoptive parent but applies only to biological parents.
“An adopted child born outside Sarawak whose biological parents are not born in Sarawak does not come within Category B,” he said.
Hence, in the illustration given by PSB as reported in the news on Nov 16 using the fictitious example of Putri, whose mother is a Peninsular Malaysian born in Sarawak to Peninsular Malaysian parents, Gerawat explained that Putri will still not qualify as to be elected to the DUN under the amendment because she is not normally resident in Sarawak even after working in the state for two years.
“She is a Peninsular Malaysian, not normally resident in Sarawak, as her residency is purely for purposes of employment.
“A person is normally resident in Sarawak if he or she resides in Sarawak and has every intention to remain in the state for an indefinite period, and has no intention of moving or residing elsewhere regardless as to whether or not he or she is employed,” Gerawat said.