Saturday, September 20, 2003

Penisula lawyer loses bid

Daily Express
20 September, 2003

Alor Setar: The High Court here Friday dismissed a petition by a Perak-born lawyer seeking admission as an advocate to the Sabah Bar.

In his written judgement on the application by Mursyida Abdul Halim, Justice Ian Chin said she has not provided sufficient evidence that she is a domicile in Sabah to fulfil one of the requirements as provided for under the Sabah Advocates Ordinance that she must have “Sabah connections.”

This is provided under Section 2, which reads:

“A person shall be deemed to have Sabah connections for the purposes of this Ordinance if, and only if: he has been born in Sabah;

has been an ordinarily resident in Sabah for a continuous period of five years or more; or satisfies the Chief Judge that he is, at the time when the question whether he has Sabah connections is relevant, domiciled in Sabah.”

“The issue was simply whether the petitioner had acquired Sabah domicile at the time she presented it. The petitioner’s case is that she is domiciled in Sabah.

“According to the facts of the case, she was born in Perak in 1978 and had been living all over Malaya during the period her father was serving in the police force and who was transferred from state to state in Malaya. After her father was transferred to Kota Kinabalu, she visited Sabah for the first time on June 14, 2001. By then she was in Kuala Lumpur doing her final year in law at the International Islamic University, Malaysia where she received her degree in December 2001. She then came back to Sabah on Jan 7, 2002, commenced her chambering a month later and after completing 12 months, petitioned for admission.

“Unfortunately, she was chambering in Kota Kinabalu without the necessary Visit Pass (Professional) as required by Regulation 11(1)(I) of the Immigration Regulations 1963. I pause the narration to consider the controversy surrounding the visit pass that she possessed because her advocate, Sugumar Balakrishnan, insisted that she does not require one and that in any event she was not told by anyone that she requires one.

“Under the Constitution, Sabah is entitled (with certain exceptions which do not concern this case) to treat Malaysians not of Sabah origin as if they are non-citizens.

“This means that other Malaysians seeking to enter Sabah has to comply with the requirement of the immigration authority and they carry the burden of establishing that they are entitled to enter Sabah (Section 66(4) of the Immigration Act). Other Malaysians wishing to enter and remain in Sabah temporarily may be issued the following classes of Passes: (a) Employment, (b) Dependent’s, (c) Visit, (d) Transit, (e) Student, (f) Special and (g) Landing (Regulation 8, Immigration Regulations, 1963).

“The Director of Immigration has the discretion whether or not to issue any pass. A Visit Pass may be issued for the purpose of a social business or professional visit. The Director of Immigration had by a letter dated July 4, 2003 stated that a chambering student from West Malaysia and Sarawak requires a Visit Pass (Professional) under Regulation 11(1)(I) of the Immigration Regulations 1963.

“The applicant had argued that the Director was wrong but that is a matter of policy and you can only insist on coming to Sabah as of right if you fall under any of those categories under Section 66 of the Act. In all other cases, the discretion lies with the Director whether to let you into Sabah.

“She had commenced her chambering without the necessary pass required under the law. What she did not tell the court is whether she was paid any money or allowance (or by whatever term it is called) for chambering in the firm of Sugumar & Co because it is a notorious fact which I can take judicial notice that chambering students are paid a monetary allowance.

“What I have referred tend to show that she does not reveal all that is going on which has a bearing on whether there was that intention to acquire a domicile in Sabah whatever may be the consequence, like being allowed a work permit to practise as a lawyer in Sabah since there is no guarantee that the Immigration Department will issue her a work permit. The result is that she chose to disclose as little as possible.

“The petitioner was given more opportunities to provide more evidence and for the purpose, she deponed another four affidavits. She firstly provided the documents to show the payment of an apartment.

“She produced a letter from Sugumar & Co to say that she would be employed for RM2,000 a month for a probationary period of three months. She also produced a letter from her father to say that he will financially support her in any event so that she can remain in Sabah permanently.

Again, there is a scarcity of details, like the cost of living for her and how financially capable is the father as to be able to support her, at how much per month and for how long. All the answers will have a bearing on whether she can financially survive and whether financially it is possible to support and carry out her declared intention to remain in Sabah permanently.

“Therefore, quite apart from conduct and action which are needed to fortify the declaration of intent and as the declaration to change a domicile is not conclusive, those conduct and action must be, in this case, further demonstrated to be feasible, sustainable or possible financially taking into the possibilities of the applicant not finding long-term employment or not finding any gainful employment at all.

“Unfortunately, there is no evidence of what her monthly expenditure will be like and, as mentioned earlier, whether her father is able to maintain her and for how long.

“There is yet another area where the evidence is unsatisfactory and this has to do with the proof of the abandonment of her domicile of origin.

“Since a person cannot have at any one time two domiciles, the applicant would have to prove that she has abandoned her domicile of origin and taken up a new one. There must be satisfactory evidence to show that the Applicant has changed her former domicile.

“The applicant in the aspect of showing evidence of abandonment of her domicile failed miserably to do so. If she has really made up her mind to abandon her former domicile, she would have informed the authorities concerned, like the National Registration Department, or apply to change her area for voting when the revision of the electoral is done.

“There is no evidence that she has done that. Those are strong evidence if she had done that to manifest her intention of abandoning her previous domicile and of acquiring a new one.”

The Sabah State Attorney-General was represented by counsel Zaleha Rose Pandin while counsel Alex Decena and counsel John Sikayun acted for the Sabah Law Association.

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