Fast-breaking news from the former CJ

Clive Kessler, The Malay Mail Online

In his Iftar (breaking of the fast) talk to the assembled Muslim NGOs last Monday night, the former Chief Justice Tun Abdul Hamid Mohamad painted a picture.

A disturbing picture.

A picture of the gates to citizenship in this nation being suddenly opened, and in an instant doubled, as the Merdeka Agreements came into effect and the Federation of Malaya achieved national independence.

In Tun Hamid’s words, augmented by citation from Prof. Shad Faruqi’s work:

…akhirnya peruntukan-peruntukan Perlembagaan dipersetujui dan ia menjadi undang-undang utama kita. Pada detik 12.00 tengah malam Semenanjung Tanah Melayu pun merdeka …

Tetapi, pada detik yang sama, satu perkara berlaku, yang kita tidak sedar. Ini digambarkan dengan jelas oleh Professor Shad Saleem Farouqi dalam bukunya yang bertajuk “Document of Destiny: The Constitution of the Federation of Malaysia” di muka surat 710. Katanya:

“As a result of the “social contract” between the various races, millions of migrants to British Malaya were bestowed with citizenship by the Merdeka Constitution. It is believed that the number of citizens in Malaya doubled at the stroke of midnight on August 31, 1957 due to the constitutional grant.”

“Akibat “kontrak sosial” di antara berbagai kaum, berjuta-juta pendatang ke Malaya yang diperintah oleh British itu diberi kerakyatan oleh Perlembagaan Merdeka. Adalah dipercayai bahawa jumlah warga negara Malaya bertambah sekali ganda pada detik tengah malam 31 Ogos 1957 disebabkan oleh pemberian Perlembagaan itu.” (Terjemahan/translation, Tun Hamid).

Doubled? In an instant?

The facts, as stated by Tun Hamid, may be right.

But the language is wrong, the rhetoric is misleading.

Every law, the former Chief Justice certainly knows, comes into force at a certain moment. When it does, things may change “in an instant”.

But the extension of Malayan citizenship to the nation’s long-standing non-Malay residents was not the work of “an instant”.

It was the culmination of a long process. A process that began at the moment when the 1946 Malayan Union proposals collapsed. It continued from then, as the old Federation of Malaya was created in 1948, through the beginning of the Alliance Party in the 1951 Kuala Lumpur municipal elections, the events leading to the 1955 elections and, thereafter, to the Merdeka negotiations.

Throughout those years and that long process, resolving the issue of non-Malay citizenship was one of the central issues.

It was the subject of protracted, detailed, serious and responsible negotiation. Responsible, on and for all sides.

And it was the result of those complex negotiations, which had been marked by an enormous amount of “give and take” on all sides, that came in to effect in August 1957 as the basis of the new national political and constitutional order.

It was the work of years, not the work of a moment, the doing of an unguarded instant when nobody was looking.

Any language that suggests the latter, or that may be insensitively ready as doing so, needs to be reconsidered.

As Prof. Shad Faruqi, in words quoted by Tun Hamid, states explicitly and as Tun Hamid himself in his own rendition of those words into Malay accepts, this expansion of national citizenship was not a conspiracy or a political stunt, not an exercise in political trickery or a disguised theft of national sovereignty.

It was, as Prof. Shad says and Tun Hamid himself accepts, nothing other than “the social contact”, the solemn basis of the nation’s foundation.

That, and not any Ketuanan Melayu fantasies, was the Malayan and Malaysian “social contract”. That and nothing else.

That fact needs to be recognised and accepted. And, at this moment in the country’s history, the need is an urgent one.

There is an old legal principle, or maxim, with which both Prof. Shad and Tun Hamid must certainly be familiar.

“Pacta sunt servanda”

The principle that “pacts and treaties must be honoured, that agreements must be kept” is a basic principle of civil and international law alike.

That applies routinely, “across the board”.

It should, and certainly must, in this case, and now urgently, if this nation is ever to achieve a future “in peace and harmony”.

* Clive Kessler is Emeritus Professor of Sociology & Anthropology at the University of New South Wales, Sydney.