Friday, July 02, 2010

Of Contract and an Old Man

At the age of 86, his only wish is to be able to go back to the country where he was born, pay respect to his parents and relatives that has passed away and be able to die in the country that he once fought for. Sadly, he was denied entry into the country by the government again and again. This old man is no other then the once feared Chin Peng, the Secretary General of the Communist Party of Malaya (CPM).

His denial of entry is a clear breach of the agreement by the government. In the agreement sign between the CPM and Malaysia Government, there is a very clear clause that stipulate for the guarantee of return of ex-communist to the country for those who wanted to return. Why government sign an agreement when they want to deny him entry into the country?

Twenty years ago, Malaysia government made a pact to put an end to an armed conflict that was costing incalculable damage to lives and the country’s economy. The two-document deal, inked in a small hotel in Hatyai, bore the names of Malaysia’s highest-level government officials, their Thai counterparts and the leaders of the Communist Party of Malaya (CPM).

The first document, termed the “Agreement Between The Government Of Malaysia And The Communist Party Of Malaya To Terminate Hostilities” was signed by the then home affairs ministry’s secretary-general Datuk Wan Sidek Wan Abdul Rahman, chief of defence forces General Tan Sri Hashim Mohd Ali and police inspector-general (IGP) Tan Sri (now Tun) Haniff Omar. Below are the clauses that both Malaysian and the CPM have agreed upon. Please read through it carefully.

ARTICLE 1 - CESSATION OF ARMED ACTIVITIES

Upon the signing of the Agreement, the Government of Malaysia and the Communist Party of Malaya shall cease all armed activities forthwith.

ARTICLE 2 - DISBANDMENT OF ARMED UNITS, DESTRUCTION OF ARMS, AMMUNITION, EXPLOSIVES AND BOOBY-TRAPS

The Communist Party of Malaya shall disband all its armed units, destroy its arms, ammunitions, explosives and booby-traps in Malaysia and Thailand.

ARTICLE 3 - RESIDENCE IN MALAYSIA

3.1 Members of the Communist Party of Malaya and members of its disbanded armed units, who are of Malaysian origin and who wish to settle down in MALAYSIA, shall be allowed to do so in accordance with the laws of Malaysia.

3.2 Members of the Communist Party of Malaya and members of its disbanded armed units, who are not of Malaysian origin, may be allowed to settle down in MALAYSIA in accordance with the laws of MALAYSIA, if they so desire.

ARTICLE 4 - PROVISION OF ASSISTANCE BY THE MALAYSIAN AUTHORITIES

With regard to Article 3, the Malaysian authorities shall assist members of the Communist Party of Malaya and members of its disbanded armed units in order to help them to start their peaceful life afresh.

A second document, detailing the terms and conditions of the peace treaty, was signed by then deputy IGP Datuk Rahim Noor and the director of Special Branch (SB) Datuk Zulkifli Abdul Rahman on behalf of Malaysia and Chin Peng, the CPM secretary-general, and central committee comrade, Rashid Maidin, on the same day and in front of the Thai government. Provided below are the terms and condition that they had agreed upon regarding the issue of residency in Malaysia.

ITEM 5 - RESIDENCE IN MALAYSIA

5.1 Members of the CPM and members of its disbanded armed units shall be allowed to take up residence in MALAYSIA if they so desire, after they have stayed in the pre-designated places in THAILAND for a minimum period of six months.

5.2 Members of the CPM and members of its disbanded armed units, who are not of Malaysian origin, may be allowed to take up residence in MALAYSIA, if they so desire, after having stayed in the pre-designated places in THAILAND for a minimum period of six months.

5.3 Those who seek to settle down in MALAYSIA must notify the Malaysian authorities of their intention to do so not later than one year from the date of the signing of the Agreement.

5.4 With regard to Item 5.1 and 5.2, the CPM shall provide the necessary particulars to the Malaysian authorities for processing and verification. In this connection, the Government shall despatch relevant officers to deal with those cases in THAILAND.

5.5 Those who wish to settle down in MALAYSIA shall be categorised as follows:

5.5.1 Malaysian citizens

5.5.2 Non-citizen spouses and children of Malaysian citizens, and

5.5.3 Aliens

5.6 Those who are allowed to settle down in MALAYSIA shall be given identification papers upon their entry into MALAYSIA before they proceed to their respective places of residence of their choice.

5.7 Non-citizen spouses and children of those who are of Malaysian origin may be allowed to settle down in MALAYSIA in accordance with the laws of MALAYSIA if they so desire.

5.8 Those who have taken up residence of their own choice in MALAYSIA shall notify the MALAYSIAN authorities of their current addresses to facilitate disbursement of financial assistance.

5.9 Those who are allowed to settle down in MALAYSIA shall be taken into the country in small batches and any search that may be conducted shall be in a manner so as not to cause any embarrassment.

5.10 There shall be no publicity of their entry into MALAYSIA.

As you all can see from the highlighted clauses, it is clear that the ex-communist can reside in Malaysia as long they wanted to return to Malaysia. Several once notorious top leaders in CPM including Abdullah C.D., Shamsiah Fakeh and Musa Ahmad have been allowed to return home as visitors or residents. Why deny Chin Peng while the rest were given chance?

In the second document, the terms are laid out more clearly for those who want to live in Malaysia. Ex-CPM members have a one-year grace period to decide where they want to live: in Malaysia, Thailand or elsewhere and arrangements shall be made to fulfil their wishes. The Malaysian government is to supply the necessary identity cards to those who want to return; and shall replace the documents for those who lost theirs, after verification.

Chin Peng, who has since reclaimed his given birth name of Ong Boon Hua, had applied to return to Malaysia, which the IGP Haniff acknowledged in an NST report dated April 28, 1991. “Chin Peng submitted his application quite late … towards the end of the period,” the English daily quoted him saying then.

On September 9 that same year, NST reported then Special Branch director Datuk Zulkifli Abdul Rahman as saying Chin Peng’s application “was being processed” and would be given the same treatment as the rest, after announcing that the first batch of 13 ex-CPM members had returned home. The next day, IGP Haniff was reported saying Chin Peng’s application was being “studied.” In the end, the cops denied the communist leader had ever put in his application to return.

Chin Peng mooted a suit in 2005 that also failed when the Federal Court upheld two lower court judgments requiring him to produce his birth certificate to prove his citizenship claim, despite his argument that he had lost them during World War II when he left home to fight the Japanese army.

Former police chief, Datuk Rahim Noor once commented “Abdullah CD in his memoirs had gleefully admitted that he was behind the attacks on police station in west Pahang and that he was involved in the Bukit Kepong incident. Were conditions (imposed on Abdullah and Suriani) to provide documents to prove they were born (in Malaya, as Chin Peng has been told to do)?” What’s with the double standard by the authority? Datuk Rahim Noor further commented “It is unfair what they are doing to that old man (Chin Peng). As a professional, I believe that the government should keep its end of the bargain.

The present administration led by Prime Minister Datuk Seri Najib Razak appears to have been swayed by sentiment to keep the former Public Enemy No. 1 from stepping foot on Malaysian soil. His deputy, Tan Sri Muhyiddin Yassin, has repeatedly echoed the misconceived view that “forgiveness” is a prerequisite to allowing the 85-year-old communist leader back. It is not. It is also not known if the present leaders have read the two documents for themselves.

Besides, if Chin Peng is certainly evil and not worth the forgiveness of the people for all the things he did during the Emergency, then why in the hell the Government went and agreed to the Peace Agreement? Certainly the power of CPM has been dwindling since the 1960s and Malaysia could have easily wiped out the remnants of the active CPM members from causing much problems. Over time, CPM would have died a natural death and the Government need not sign or fulfil any agreements.

This is the same question asked in The Sun “The government had signed the Haadyai peace accord in 1989 allowing him and his people the right to return on laying down their arms. Is the government legally right to renege on its agreement signed 20 years ago? If so doesn’t it stand to lose the trust of the international community on its readiness to honour all other forms of agreements?”

Since the government has signed an agreement, it is bound to abide to the clauses, terms and condition under the agreement. What is an agreement? Agreement is a contract if we look at the Contracts Act 1950 and since the agreement is a contract then both parties have to perform it. If another party fails to do what it suppose to do, can the other party claim in this case? I don’t think so as even the Judiciary has decided against the other party without regarding the agreement that the both part has signed. Where is the justice in this case?

We know that CPM is an illegal organisation and the government by right don’t need to sign anything with them but since the authority has deemed it fit to sign the peace agreement, although it was fully aware that the CPM had been an illegal organisation since 1948.
To quote Datuk Rahim Noor’s words, Therefore, logically, both sides must respect (the agreement). To the best of my knowledge, Chin Peng’s side has observed every (one of the) terms and conditions of the peace treaty.”

The CPM has observed the peace treaty. So (what about us?) I think the government has done well to the extent that those who came back were given allowances. They were not arrested under ISA (Internal Security Act) and one or two are even lecturers in a local university.
It is only Chin Peng (right) who has not been allowed to return. Here, let me remind you that I am (speaking as a) professional man, and (that) I refer to the peace treaty.”

If the government itself can’t even abide to the agreement that they had signed, how do you expect others, especially investor to have confidence towards our country. In the same sense, how will the international community react if Malaysia enters or negotiate other peace accords? Are we going to be known as the country that easily breaks and violates agreements due to political reasons?

If this matter never resolves properly it will be a very serious problem. To quote what Tengku Razaleigh has said ‘This casts serious doubt on the Malaysian Government’s respect for the sanctity of contracts and the rule of law.”

No matter what, the government must always keep in mind that it is bound by a treaty, even if it was signed ages ago. If it does not keep its part of the deal, it can only lead to one conclusion, which will have very far-reaching consequences on all future agreements.

Sources
1. http://my-1.themalaysianinsider.com/index.php/malaysia/45282-what-price-malaysias-honour-
2. http://www.aminiskandar.com/?p=2464
3. http://www.sun2surf.com/article.cfm?id=40797
4. http://jameswongwingon-online.blogspot.com/2006/05/1989-haadyai-peace-accords-part1.html
5. http://jameswongwingon-online.blogspot.com/2006/05/1989-haadyai-peace-accords-part2.html
6. http://english.cpiasia.net/index.php?option=com_content&view=article&id=1577:uphold-the-spirit-of-reconciliation-in-the-haadyai-peace-accords&catid=130:Bloggers%20Buzz&Itemid=160
7. http://en.wikipedia.org/wiki/Chin_Peng

4 comments:

Wanderer said...

chill la, from an editor's point of view, i doubt I will allow this article too.

reasons are two fold:-
1. references use are not 'official', u wil learn more about 'reliable source' later in ur course.

2. deadly blow is the use of words by ur side. as a writer, u shud most often refrain frm instilling ur personal sentiment into the article, rather it shud be a more impartial stance.

just my personal opinion only. agree that u say u r giving a legal opinion, but then, the way the notion was put forth wasn't subtle in my view.

try again next time.

Aced said...

If this is what you had said, then my article wouldn't has pass through the scrutinization of my 3 lecturers and by the way, it was edited by my lecturer into the current form.
By the way, have you read an law article before? If you did, then you will find it is normal for us to write this way.
I suggest you to go http://loyarburok.com/, look at how people in legal sphere write and express their view. It will enlighten you. PEACE:D

Wanderer said...

naa, i dun read much law articles, onli those occasional few news articles.

n i onli write on education issues, hence law is not my forte, but as a general view of editing, yea, dats my comments. but i maybe wrong as the field is different. U can try sending to NST editor to see whether they consider publishing on the letter column, its rather general there, they publish anything.

Aced said...

Oic. Yah, maybe we different field that is why the way we write different.

Well, if I give NST, lagi la they won't even edit it or go through it. Don't bother they will publish it because, NST is under UMNO.

FYI, Utusan, Berita Harian, NST are under UMNO. Next, most of the Chinese press media and also The Star is under MCA. The same goes to the Tamil newspaper where all the Tamil newspaper is link to MIC.

In M'sia only got 2 independent newspaper in circulation, 东方日报 and TheSun.