By Daniel John Jambun, President Borneo’s Plight in Malaysia Foundation (BoPiMaFo)
KOTA KINABALU: Borneo’s Plight in Malaysia Foundation (BoPiMaFo) has taken note of the comments by Zaki Susanto, who argued that the decision to prohibit the entry of BERSIH Executive Director Muhammad Asraf Iqbal into Sabah is justified because Sabah possesses special immigration powers under the Federal Constitution and the Malaysia Agreement 1963.
BoPiMaFo fully agrees with Zaki Susanto that Sabah enjoys special constitutional authority over immigration.
These powers are among the fundamental constitutional safeguards negotiated before the formation of Malaysia in 1963 and remain an essential component of Sabah’s constitutional autonomy. They must be respected and preserved.
However, the existence of a constitutional power and the lawful exercise of that power are two distinct constitutional questions.
The fact that a public authority possesses a constitutional power does not mean that every exercise of that power is necessarily beyond constitutional scrutiny.
The Federal Constitution is founded upon the rule of law, and every constitutional power—however important—is expected to be exercised lawfully, rationally, fairly and for a proper constitutional purpose.
This principle applies equally to the Federal Government, the State Governments and every constitutional institution.
Accordingly, the constitutional question is not whether Sabah possesses immigration powers. It unquestionably does.
The constitutional question is whether those powers are exercised consistently with the principles of legality, proportionality, procedural fairness and good governance that underpin our constitutional system.
If there are genuine concerns relating to public security, public order or other legitimate constitutional interests of Sabah, the exercise of the State’s immigration powers may well be justified. The Constitution itself recognises that such powers exist to protect Sabah’s unique interests.
However, where the restriction concerns a Malaysian citizen engaged in peaceful public advocacy, it is neither unreasonable nor unconstitutional for members of the public to seek assurance that the decision was made on lawful grounds and for a proper constitutional purpose.
Requesting transparency should never be mistaken for opposing Sabah’s constitutional autonomy.
On the contrary, transparency reinforces public confidence that Sabah’s special constitutional safeguards are being exercised responsibly, impartially and consistently with the rule of law.
In this respect, BoPiMaFo respectfully differs from the conclusion advanced by Zaki Susanto to the extent that it may suggest the mere existence of Sabah’s immigration powers is, by itself, sufficient to answer every constitutional concern. Constitutionalism requires not only that public authorities possess legal powers, but also that those powers are exercised lawfully, fairly and consistently with the Constitution.
BoPiMaFo therefore does not seek to prejudge the correctness of the present decision, as the relevant facts and reasons may not yet be publicly known. Rather, we reaffirm a constitutional principle that should command universal support.
Sabah’s constitutional autonomy and the rule of law are not competing values.
They are mutually reinforcing constitutional principles.
The true strength of Sabah’s constitutional safeguards lies not merely in possessing special powers, but in exercising those powers with integrity, accountability, transparency and fidelity to the Constitution.
That is how public confidence is earned.
That is how constitutional autonomy is protected.
That is how the rule of law is upheld.
