Does Sarawak have the moral right to bar Malaysians from entering?

 Constitutional autonomy was not created as a blank cheque for excluding inconvenient Malaysians.

From Kua Kia Soong

In August 2007, I arrived at Kuching International Airport to officiate at a graduation ceremony for teachers trained by New Era College, where I was then principal. I was not carrying drugs. I was not wanted by the police. I was not entering Sarawak to organise an insurrection. I was there to attend an educational ceremony. Yet, I was stopped at immigration and told that I was not allowed to enter Sarawak.

After I persistently asked why, I was told that I was on a blacklist because of my “anti-logging activities”. I was then put on a flight back to Kuala Lumpur. The contemporary report of the incident records that I was an active campaigner against the Bakun dam and had participated in a fact-finding mission concerning indigenous people displaced from the Bakun area.

Think about that for a moment. A Malaysian citizen, travelling from one part of Malaysia to another, was effectively told: you are not welcome in this part of your country because you opposed the destruction of forests and the displacement of indigenous communities. Nearly 20 years later, the question remains: Sarawak may have the constitutional power to do this. But does it have the moral right?

The legal argument is not the whole argument

Let me be clear. I am not disputing that Sarawak possesses special immigration powers. These powers are rooted in the constitutional arrangements surrounding the formation of Malaysia. Article 161E protects certain constitutional safeguards for Sabah and Sarawak, while Part VII of the Immigration Act 1959/63 provides the statutory framework for immigration control. The Sarawak government itself describes immigration autonomy as an entrenched constitutional right.

But there is a much more important question: what is that power for? The justification traditionally associated with Sarawak’s immigration safeguards was the protection of the state’s special interests – including its economy, employment, security, cultural identity and the interests of its people. Constitutional autonomy was not created as a blank cheque for excluding inconvenient Malaysians.

There is a world of difference between immigration autonomy and political exclusion. If the purpose of the special powers is to protect Sarawak and Sarawakians, what exactly was Sarawak being protected from when I was turned away? A former MP and college principal coming to officiate at a teachers’ graduation ceremony? Or an environmental campaigner who criticised the Bakun dam and logging?

If the latter was the real reason, then the issue is no longer simply immigration administration. It becomes an issue of freedom of expression, political dissent and the abuse of administrative power.

What exactly was my crime? My supposed offence was opposing the destruction of forests and the displacement of indigenous people. During the 1990s, I was active in opposing the Bakun dam project. I participated in a fact-finding mission to investigate the conditions of indigenous people displaced to Sungai Asap. So apparently, in the strange political dictionary of the time, defending forests and indigenous communities could make a Malaysian an undesirable person in Malaysia. What next? The irony is almost unbearable.

Sarawak has every reason to be proud of its unique constitutional position, but autonomy should mean more democracy, not less. It should mean that Sarawakians have greater control over their land, resources, culture and political affairs. It should not mean that the state acquires a constitutional moat around itself so that environmentalists, human rights defenders, academics or political critics can be kept outside. Otherwise, autonomy becomes a very peculiar proposition: the more autonomous the government becomes, the less accountable it becomes to citizens exercising their democratic rights.

That cannot be the meaning of Malaysia’s federal bargain. Apparently, the issue has not disappeared. Just this week, Sahabat Alam Malaysia president Meenakshi Raman was denied entry into Sarawak. A Sarawak deputy minister said the state is not required to give notice to people barred from entry and that the relevant immigration laws give it the authority to stop people from entering.

Civil society groups have called for the reasons and basis for the restriction to be disclosed. Thus, nearly two decades after my experience, environmental defenders are still encountering the same question: who gets to decide who is sufficiently “Sarawakian” in spirit to be allowed into Sarawak?”

What about international human rights? Here, the distinction between legal authority and international legitimacy becomes crucial. The Universal Declaration of Human Rights (UDHR) states in Article 13(2) that everyone has the right to leave any country, including his own, and to return to his country. The International Covenant on Civil and Political Rights (ICCPR) goes further in Article 12(4): “No one shall be arbitrarily deprived of the right to enter his own country.”

There is, however, an important qualification. Malaysia has not ratified the ICCPR. Therefore, I would not argue that my exclusion in 2007 was automatically a violation of a treaty obligation binding Malaysia under the ICCPR. But that does not make the international human rights question disappear. The UDHR remains one of the foundational statements of the international human rights system. Malaysia has repeatedly presented itself internationally as a country committed to human rights, democracy and the rule of law.

The question is therefore not merely: “Was Sarawak legally entitled to do it?” It is: “Was it consistent with the human rights values Malaysia claims to uphold?” That is a much harder question for the authorities to answer. Sarawak’s forests are not a Sarawak-only issue.

There is another irony here. Logging, indigenous rights, biodiversity and environmental destruction are not purely “state matters” in any meaningful moral sense. The rainforest does not stop at the Kuching immigration counter. Neither does climate change. Nor does the destruction of biodiversity. Nor does the displacement of indigenous peoples.

A Malaysian citizen concerned about what happens to Sarawak’s forests is not a foreign agitator. He is a Malaysian citizen concerned about Malaysia. If Sarawak’s forests are part of Malaysia’s natural heritage, why should Malaysians be treated as outsiders for expressing concern about them? Indeed, the more internationally connected environmental politics becomes, the more absurd such restrictions appear.

Malaysia wants to attract international investment. It wants to promote Sarawak as an ecological and cultural destination. It wants to speak proudly about sustainable development and indigenous communities. Yet an environmental campaigner can apparently arrive at an airport and be told, “Turn around. Your concern for our forests is unwelcome here.” What kind of message does that send to the world?

A constitutional right should come with a constitutional conscience. That is a question of political morality. It is a question that Sarawak – and Malaysia – still has to answer. Nearly 20 years after I was turned away at Kuching airport, I am still waiting for a convincing answer. - FMT

Kua Kia Soong is a former MP.

The views expressed are those of the writer and do not necessarily reflect those of  MMKtT.