Agreement relating to Malaysia between United Kingdom of Great Britain and Northern Ireland, Federation of Malaya, North Borneo, Sarawak and Singapore/Annex E

by the Governments of the United Kingdom of Great Britain and Northern Ireland, Federation of Malaya, North Borneo, Sarawak and Singapore

DRAFT
A BILL
intituled

An Act to extend and adapt the Immigration Ordinance, 1959, for Malaysia, and to make additional provision with respect to entry into the States of Sabah and Sarawak.

[⁠⁠⁠⁠⁠⁠]

Be it enacted by the Duli Yang Maha Mulia Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Ra'ayat in Parliament assembled, and by the authority of the same, as follows :

Part I
GENERAL

Short title construction.

1. This Act may be cited as the Immigration Act, 1963, and shall be construed as one with the Immigration Ordinance, 1959.

Commencement.

2. Save as otherwise provided by this Act, this Act shall come into operation on Malaysia Day that is to say, the 31st day of August, 1963.

General extension and adaptation of federal Ordinance, and repeal of State laws.

3. (1) Subject to the provisions of this Act, the Immigration Ordinance, 1959, shall extend throughout Malaysia (and references therein to the Federation shall be construed accordingly), and the following immigration laws of the States of Sabah, Sarawak and Singapore shall cease to have effect, that is to say,

(a) in Sabah, the Immigration Ordinance, 1962 (No. 1 of 1962) ;

(b) in Sarawak, the Immigration Ordinance (Cap. 15) ;

(c) in Singapore, the Immigration Ordinance (Cap. 102).

(2) In the Immigration Ordinance, 1959, there shall be made the amendments provided for by the Schedule.

(3) Parts II and III of the Delegation of Powers Ordinance, 1956, so far as relevant for the purposes of the Immigration Ordinance, 1959, shall for those purposes extend to the States of Sabah, Sarawak and Singapore, whether or not so extended for any other purpose.

Part II
SPECIAL PROVISIONS FOR THE BORNEO STATES

Application of immigration law to each Borneo State as separate unit. 4. (1) Without prejudice to the general operation of the Immigration Application Ordinance, 1959 (in the Borneo States as in other parts of the Federation) as a general law for the Federation as a whole, that Ordinance shall also have effect, subject to and in accordance with this Part of State as this Act, as a special law for each of those States as if for any reference to the Federation (except in a reference to a Government in the Federation or to a citizen of the Federation) there were substituted a reference to the Borneo State.

(2) Regulations under section 54 of the Immigration Ordinance, 1959, and orders under section 55 (exemptions) of that Ordinance, may make special provision as regards a Borneo State for the purposes of the Ordinance as a special law for that State; and no such regulations shall be made or have effect so as to prejudice the powers conferred by this Part on the authorities of the State.

(3) If in a Borneo State there is no Controller, there shall be a Deputy Controller having all such authority to exercise the powers and discretions vested in the Controller by the Immigration Ordinance, 1959, and discharge the duties required to be discharged by him, as may be necessary for the purpose of giving effect to that Ordinance as a special law for the State.

(4) In the operation of the Immigration Ordinance, 1959, as a special law for a Borneo State, it shall have effect subject to the following modifications:—

(a) section 9 (which confers on the Minister a general power to limit entry into the Federation) and section 46 (which relates to repatriation) shall not apply; and

(b) references to a Permit or Pass shall mean a Permit or Pass to enter the Borneo State.

(5) Notwithstanding anything in the foregoing provisions of this section, the powers and discretions vested in the Controller by the Immigration Ordinance, 1959, as a special law for a Borneo State shall not be exercised by him so as to exclude or remove from the Borneo State a person entitled to be in the Federation outside the Borneo State, except with a view to making effective the powers conferred by this Part on the authorities of the State; and no such person shall in the exercise of those powers be required to leave and depart from the Federation nor, without his consent, be removed from the Federation.

General powers of State authority. 5. (1) In exercising his powers under the Immigration Ordinance, 1959, as a special law for a Borneo State the Controller shall comply with any directions given to him by the State authority, being directions—

(a) requiring him not to issue a Permit or Pass, or a specified description of Permit or Pass, to any specified person or class of persons, or to do so only for a specified period or on specified terms and conditions; or

(b) restricting the making of endorsements on a Permit, Pass or Certificate or any description thereof; or

(c) requiring him to exercise any discretion vested in him to cancel any Permit, Pass or Certificate issued to a specified person, or to deem a specified person to be an undesirable immigrant, or to declare that a specified person's presence in the Borneo State is unlawful, or to order a specified person's removal from the State.

(2) Where the Controller takes any action in obedience or purported obedience to any directions given under sub-section (1), and there is an appeal to the Minister against that action, the Minister shall not allow the appeal without the concurrence of the State authority.

(3) An order under section 55 (exemptions) of the Immigration Ordinance, 1959 shall not have effect for the purposes of the Ordinance as a special law for a Borneo State, except in so far as its provisions are by the same or a subsequent order applied to those purposes with the concurrence of the State authority.

Restriction of citizen's right of entry into Borneo State. 6. (1) Subject to subsection (2) and to sections 7 and 8, a citizen of the Federation sha11 not entitled to enter a Borneo State without having obtained a Permit or Pass in that behalf unless—

(a) he belongs to the Borneo State; or

(b) he is a member of the Federal Government, or of the Executive Council or Legislative Assembly of the Borneo State (or of any Council having similar functions in the State); or

(c) he is a judge of the Federal Court or of the High Court in Borneo, or is a person designated or nominated to act as such, or he is a member of any Commission or Council established by the Federal Constitution or by the constitution of the Borneo State; or

(d) he is a member of any of the public services of the Federation, or of the public service of the Borneo State, or of a joint public service serving the Borneo State, or is seconded to any such service.

(2) Where a citizen of the Federation is entitled to enter the Borneo State under sub-section (1), the citizen's children under the age of eighteen years and (if he is a man) his wife, if entering the Borneo State with, or to be with, the citizen, shall not be required by subsection (1) to obtain a Permit or Pass in that behalf.

(3) Where a citizen of the Federation is not entitled to enter a Borneo State under this section, the Immigration Ordinance, 1959, in its operation as a special law in the Borneo State shall apply to him as if he were not a citizen :

⁠Provided that a citizen arriving in the Federation in the Borneo State or in another of the Borneo States, and proceeding to a part of the Federation which he is entitled to enter, shall be entitled to such Pass as is reasonably required to enable him to do so.

(4) The burden of proof that a person is entitled to enter the Borneo State under this section shall lie on him.

Right to enter Borneo State for exercise of political rights. 7. Subsection (1) of section 6 shall not have effect in relation to a citizen of the Federation entering the Borneo State for the sole purpose of engaging in legitimate political activity; but the burden of proof exercise that a person is entitled to enter the Borneo State under this section political shall lie on him.

Right to enter Borneo State for purposes of Federal Government. 8. (1) Subsection (1) of section 6 shall not have effect in relation to any citizen of the Federation whose entry into the Borneo State is temporarily required by the Federal Government in order to enable purposes of that Government to carry out its constitutional and administrative Federal responsibilities.

(2) The Minister shall from time to time notify the Controller of the persons or classes of persons whose entry into a Borneo State is required as aforesaid, and shall give him such particulars as are necessary to enable him to discharge his functions in relation to those persons; and in relation to any Borneo State subsection (1) shall not be taken to apply to any person unless he is a person, or belongs to a class of persons, so notified to the Controller in relation to that State.

(3) The Minister shall not give any notification to the Controller under subsection (2) except after consultation with the State authority.

Entry from outside Federation for purposes of State Government. 9. (1) The powers of the Controller under the Immigration Ordinance, 1959, shall be so exercised as to allow the entry into a Borneo State of any person if his entry is required by the government of the State for purposes of that government.

(2) The State authority shall from time to time notify the Controller of any person whose entry is required as aforesaid, giving such particulars as are necessary to enable the Controller to discharge his functions in relation to that person; and sub-section (1) shall not be taken to apply to any person unless he is a person so notified to the Controller.

(3) The State authority shall not give any notification to the Controller under sub-section (2) except after consultation with the Minister; and if the Minister considers it desirable in the national interest for entry to be refused to the person in question, and so informs the State authority, the notification shall not be given.

Temporary protection for potential citizens in a Borneo State. 10. (1) As regards entry into and residence in a Borneo State and all matters connected therewith a person entitled in the State to the citizens in benefit of this section shall be treated for the purposes of the Immigration Ordinance, 1959, as if he were a citizen of the Federation.

(2) Subject to the provisions of this section, a person shall be entitled in a Borneo State to the benefit of the section if—

(a) on Malaysia Day he is ordinarily resident in the State, and in the ten years immediately preceding that day he has resided in the territories comprised in the Borneo States and Brunei for periods which amount in the aggregate to not less than seven years; and

(b) immediately before Malaysia Day under the immigration law of the territories comprised in the State, he would as being a Commonwealth citizen (or if not a Commonwealth citizen, then in the case of Sabah as having been before November 1931 born in North Borneo) have been entitled to enter those territories without having obtained a permit or pass.

(3) A person shall not be entitled to the benefit of this section after the beginning of September, 1965:

⁠ Provided that where before September, 1965, a person entitled in a Borneo State to the benefit of this section makes an application to be registered as a citizen of the Federation and the application is not disposed of before the beginning of that month, he shall continue to be so entitled until the application is disposed of.

(4) So long as a person is entitled in a Borneo State to the benefit of this section that person's children under the age of twenty-one years and (if he is a man) his wife shall as regards entry into and residence in the State and all matters connected therewith be treated for the purposes of the Immigration Ordinance, 1959, as if

they were citizens of the Federation.

(5) For the purpose of determining whether paragraph (b) of subsection (2) is satisfied in the case of any person, any question which under the immigration law of the territories comprised in a Borneo State would have fallen to be determined by an authority or officer of the government of those territories shall be determined by the

Minister.

(6) A person who has left a Borneo State on or after Malaysia Day shall not be entitled in the State to the benefit of this section if the Minister is satisfied that his residence in the State would be prejudicial to public security.

(7) This section shall not entitle any person for the purpose of reaching a Borneo State to enter or remain in any part of the Federation outside the State otherwise than in accordance with the Immigration Ordinance, 1959, as it applies to persons who are not citizens of the Federation; but a person entitled by virtue of this section to enter a Borneo State shall be entitled to receive such Pass to enter a part of the Federation outside the State as is reasonably required to enable him to do so.

(8) For persons entitled to enter a Borneo State by virtue of this section regulations under the Immigration Ordinance, 1959, may, as respects Certificates of Status and other matters, make special provision different from that made for citizens of the Federation.

(9) For purposes of this section residence shall be calculated in like manner as for the purpose of registration as a citizen of the Federation, and "child" includes in relation to a woman, an illegitimate child.

Persons to be treated as belonging to Borneo State. 11. (1) For purposes of section 6, a citizen of the Federation shall be treated as belonging to a Borneo State if—

(a) he is or has within the preceding two years been a permanent resident in the Borneo State; or

(b) he became a citizen of the Federation in any of the following ways, that is to say,

(i) by operation of law on Malaysia Day in respect of his being a citizen of the United Kingdom and Colonies ordinarily resident in the State; or

(ii) by operation of law on or after Malaysia Day in respect of his birth in the Federation and of one of his parents being at the time of the birth a permanent resident in the Borneo State; or

(iii) by registration in respect of his being on Malaysia Day ordinarily resident in the Borneo State.

(2) Subject to subsection (3) a person shall not be treated for purposes of this section—

(a) as becoming a permanent resident in a Borneo State after not being one, until he has in a period not exceeding five years been resident in the State for periods amounting to three years; or

(b) as being a permanent resident in a Borneo State at any time when under federal law he requires permission to reside there and has not got permission to do so granted without limit of time.

(3) paragraph (a) of subsection (2) shall not prevent a woman being treated as a permanent resident in a Borneo State at any time when she is married to a permanent resident in the State and is ordinarily resident there with him.

(4) In determining for the purposes of this section whether a person is or was at any time a permanent resident in a Borneo State no account shall be taken of any period of residence in the State while he is there by virtue of section 7 or 8; but a period of residence or of permanent residence shall not for purposes of this section be treated as interrupted or terminated—

(a) by a period of absence from the State of less than six months; or

(b) by a period of absence from the State for purposes of education of such kind, in such country and for such time as may from time to time be either generally or specially approved by the State authority; or

(c) by a period of absence from the State on duty in the service of the Federation or of any State, where the absence is not inconsistent with the essential continuity of the residence in the State; or

(d) by a period of absence from the State for any other cause allowed generally or specially by the State authority.

(5) A person who for purposes of the Immigration Ordinance, 1959, is for the time being treated under section 10 of this Act as a citizen of the Federation in respect of his being on Malaysia Day ordinarily resident in a Borneo State shall for purposes of section 6 be treated as belonging to that State.

(6) Any authority empowered under the Immigration Ordinance, 1959, in its operation as a special law for a Borneo State to issue Certificates of Status showing that a person belongs to that State shall (unless the authority is an authority of the State) notify the State authority of any application for the issue of such a Certificate, and if so required by the State authority consult with that authority before issuing the Certificate.

Meaning of "State authority". 12. In this Part of this Act " State authority " means, for any purpose relating to a Borneo State, the Chief Minister of the State or such person holding office in the State as the Chief Minister may designate for that purpose by notification in the State Gazette.

Part III
SUPPLEMENTARY

Travel documents required. 13. (1) Subject to any exemption granted under section 55 of the Immigration Ordinance, 1959, every person entering Malaya or a Borneo State from a place in the Federation outside Malaya or outside that State, as the case may be, shall produce to the immigration officer either an internal travel document issued under section 14 or the like passport, or other travel document, having the like visa (if any), as would be required by the law for the time being in force with respect to passports if he were entering from a place outside the Federation.

(2) A person shall be guilty of an offence against the Immigration Ordinance, 1959, if he enters Malaya or a Borneo State contrary to the provisions of sub-section (1), or attempts to do so, or abets any person to do so.

Provision for internal travel documents. 14. (1) The Minister shall make arrangements for the issue to citizens of the Federation, in such circumstances and on such conditions as may be prescribed, of special travel documents for travel within the Federation; and any such document shall be known as an internal travel document, and shall not be deemed to be a passport within the meaning of any law relating to passports.

(2) In the following provisions of the Immigration Ordinance, 1959, that is to say,—

(a) in section 53 (under which the counterfoils of Permits, Passes etc. are receivable in evidence); and

(b) in subsection (1) of section 56, in paragraphs (i) to (l) (under which frauds in connection with Permits, Passes etc. are made offences against the Ordinance);

after the word " Pass ", in each place where it occurs, there shall be inserted the words " internal travel document ".

Continuation of State subsidiary legislation. 15. (1) The repeal by this Act of any law in force immediately before Malaysia Day in the territories comprised in a Borneo State or Singapore shall not affect the operation of any subsidiary legislation then having effect under that law; but, subject to section 16, any such subsidiary legislation shall continue to have the like effect, as nearly as may be, for any corresponding purpose of the Immigration Ordinance, 1959, until it is superseded by any regulations or order made under that Ordinance.

(2) No such subsidiary legislation in force in a Borneo State shall be so superseded in whole or in part without the concurrence of the Chief Minister of the State.

Power to make supplementary and transnational provision. 16. (1) The Minister may by order make provision for all or any of the following matters:

(a) for any necessary adaptation, in the application of the Immigration Ordinance, 1959, to a Borneo State or to Singapore, of references to any law or authority which are not applicable in that State;

(b) for enabling powers conferred by that Ordinance or this Act on authorities outside a Borneo State to be exercised by an authority in the State, until the Minister otherwise directs;

(c) for any savings from the effect of any amendment or repeal made by this Act, and for any modification, in connection with the coming into operation of this Act or the Malaysia Act, of anything done before Malaysia Day under or for the purposes of the Immigration Ordinance, 1959, or any immigration law repealed by this Act;

(d) for any adaptations necessary for the purposes of section 15 of any subsidiary legislation continued in force by that section, (including adaptations necessary to secure that things done thereunder shall be recognised or have effect throughout the Federation);

(e) generally for facilitating the bringing into force of this Act and for securing the continuity thereof with the immigration laws in force immediately before Malaysia Day.

(2) This section shall have effect from the passing of this Act so as to authorise the making of orders to take effect on or after Malaysia Day, and no order shall be made under this section after that day.

(3) No order under this section shall make any adaptation in the subsidiary legislation to be continued in force in a Borneo State, except with the concurrence of the Governor of the Colony.

((Section 3(2)

SCHEDULE
GENERAL ADAPTATIONS OF IMMIGRATION ORDINANCE, 1959

1. The following provisions shall be omitted:—

(a) in section 2 the definition of "citizen of Singapore", and in the definition of "entry" the words "for some place outside Malaya"; and

(b) in sections 5, 6 and 7 the words "from any place outside Malaya " in sub-section (1); and

(c) in section 6, sub-section (2) and, in sub-section (3), the words "or (2)"; and

(d) in section 7, paragraph (b) of sub-section (1) and sub-section (2); and

(e) in section 8, in subsection (1), the words from "or a citizen" in paragraph (a) to the end of paragraph (b) and, in sub-section (2), the words "from any place outside Malaya or from Singapore " in paragraph (a) and the words "from any place outside Malaya" in paragraph (b), and in sub-section (6) the words from "or of" to "Singapore"; and

(f) in section 11, paragraph (b) of sub-section (1); and

(g) in section 15, sub-section (3) and, in sub-section (4), the words "of subsection (1), (2) or (3)"; and

(h) in section 16, sub-section (2) from the word " or " onwards; and

(i) in section 18, in sub-section (1), the words "from any place outside Malaya "; and

(j) in section 25, in sub-section (1), the words "for a place outside Malaya "; and

(k) in section 26, in sub-sections (1) and (2), the words "from a place outside Malaya " and, in sub-section (3) the words "for a place outside Malaya "; and

(l) in section 28, in sub-section (1), the words " from any place outside Malaya " and the words " for any place outside Malaya "; and

(m) in section 32, in sub-section (1), the words " or citizen of Singapore ", and sub-section (2); and

(n) in section 33, in sub-section (2), the words from "or of any pass " in the proviso onwards; and

(o) in section 36, the words "or Singapore"; and

(p) section 37; and

(q) in section 46, in sub-section (1), the words "or a citizen of Singapore" in paragraph (a) and, in sub-section (3), the words " or Singapore"; and

(r) in section 53, the words from "or under" to "in Singapore", and the words "of the Federation or Singapore, as the case may be"; and

(s) in section 56, in sub-section (1), paragraphs (c) and (e) and, in paragraph (k), the words from "or any permit" to "Singapore".

2. The words "the Federation" shall be substituted for the word "Malaya" in the following places, namely, in the definition of "through passenger" in section 2: in paragraphs (i) and (j) of sub-section (3) of section 8: in both places where it occurs in paragraph (a) of sub-section (1) of section 9: in both places where it occurs in sub-section (1) of section 11: in sub-section (2) of 16: in sub-section (2) of section 17: in sub-section (2) of section 42: in sub-section (1) of section 45: in section 47.

3. The words "a citizen of the Federation" shall be substituted—

(a) in sub-section (1) of section 6 for the words "a person specified in section 7"; and

(b) in sub-section (3) of section 7 for the words "a person to whom this section applies"; and

(c) in sub-section (1) of section 11 for the words "a person entitled to enter the Federation under the provisions of sub-section (1) of section 7"; and

(d) in sub-section (2) of section 42 for the words "entitled under the provisions of section 7 to enter the Federation without having obtained a Permit or a Pass";

and the words "as a citizen of the Federation" shall be substituted in sub-section (1) of section 10 for the words "under the provisions of section 7".

4. (1) The provisions now contained in section 2 shall become sub-section (1) of that section, and there shall be added to the section as sub-section (2)—

⁠⁠"(2) For the purposes of this Ordinance a person travelling between two places in the Federation without entering any territory outside the Federation shall not be treated as leaving, entering or arriving in the Federation because in so doing he passes out of and returns into the Federation."

"Vessels and aircraft arriving in or leaving Malaya."

(2) After section 23 there shall be inserted as section 23A—

⁠⁠23A. The foregoing sections of this Part shall apply aircraft in relation to a vessel arriving in or leaving Malaya as they arriving in apply in relation to a vessel arriving in or leaving the Federation."

5. At the end of section 3 there shall be added as sub-section (3)—

⁠⁠ "(3) The Yang di-Pertuan Agong may under sub-section (1) appoint two or more Controllers to be stationed in and to act for different parts of the Federation; but anything required or authorised to be done by, to or before the Controller shall, if there are more than one Controller, be valid and effectual if done by, to or before any of them."

6. In section 19, after paragraph (c) of sub-section (1), there shall be inserted as paragraph (d)—

⁠⁠ "(d) a consular officer of the country to which the vessel belongs."

7. Section 61 is hereby repealed.