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

Constitution of Malaysia

... important parts of the original Constitution, such as jus soli (right of birth) citizenship, a limitation on the variation of the number of electors in constituencies, and Parliamentary control of emergency powers have been so modified or altered by amendments that "the present Federal Constitution bears only a superficial resemblance to its original model. -DR. SHAD SALEEM FARUQI

We all know that The Federal Constitution of Malaysia is the supreme law of Malaysia but do you know how many times did the constitution being amended?

As of early 2008, the number of individual amendments to the constitution is estimated to be about 670. Well, excluding a few amendments that were made to let Singapore gain independence, the amount of amendment will not go lower than 640 times.

Look at the amount of amendment that was made since our country independence, Malaysia for sure outpace nearly most of the country in the world for the amount of amendment that was made, even United States of America also lose because US amended her constitution for only 27th times.

Frankly speaking, certain amendment I do support such as the amendment which strip off the royal family's immunity from being charge or sue for their misdeed. This is good but as for the other amendments, I can say that they amend to accommodate their own interest instead of the rakyat interest, in short, abuse of power. The most serious case is the amendment that was made in 1988 that put judiciary under Parliament's influence.

All I can say is that most of the roots of unrest & havoc in this country started from the amendment of constitution. We should always be vigilant whenever a law was enacted or amended because any law that was enacted or amended will affect us in some ways. If it doesn't favor the rakyat, tell those in charge through any channel you can. Don't accept it blindly. We should dictate our country destiny because our country practice democracy where people is the master.

Below are the major & most controversial amendments that were ever made in Malaysia history.

Sensitive Matters Amendment

One of the most controversial amendments in Malaysia’s Constitution is the Constitution (Amendment) Act, 1971, which came in the wake of the May 13, 1969 racial riots.

Known as the “Sensitive Matters Amendment,” it revised Article 10 – which safeguards freedom of speech – to empower Parliament to pass laws to restrict public discussion on four “sensitive” issues: citizenship; the national language and the languages of other communities; the special position and privileges of the Malays and natives of the Borneo states, and the legitimate interests of other communities; and the rulers’ sovereignty.

Before the Act, the Conference of Rulers’ consent was required only for amendments to provisions related to the rulers, and the special rights and privileges of the Malays and the legitimate interests of other communities.

As a result of the Act, consent was also required for other provisions, such as Article 10 (freedom of speech), Article 63 (privileges of Parliament), Article 72(privileges of the state legislative assembly) and Article 152 (national language).

Article 153 originally provided for the Yang di-Pertuan Agong to be the guardian of the special position of the Malays and the legitimate interests of other communities. It also empowered him to ensure that a reasonable proportion of opportunities was reserved for the Malays in public service, education, and for permits and licences.

The 1971 amendment allowed the natives of the Borneo states to have the same status as the Malays.

It also empowered the Agong to direct any institution of higher learning to reserve a reasonable proportion of places for the Malays and natives, should the number of places be less than the number of qualified candidates.


Judiciary

Another milestone in the Constitution’s evolution was the amendment to Article 121 in 1988, which effectively put the judiciary under Parliament’s influence. The attorney-general was also empowered to determine the courts for cases to be heard.

To the legal fraternity and civil society, this eroded the judiciary’s autonomy and weakened the separation of powers between the three branches of government – the judiciary, the executive and the legislature.

The amendment came in the wake of a series of court cases where the executive accused the judiciary of encroaching on its powers. These cases included a court ruling overturning the government’s decision to revoke a foreign correspondent’s work permit, judicial reviews of ministerial decisions such as the award of the North South Highway project to UEM, and the declaration of Umno as illegal following a dispute over the party’s election in 1987.

Then Lord President, Tun Salleh Abas, and several judges, wrote a letter to the King about the efforts to undermine public confidence in the judiciary. He was charged with writing the letter without the approval of all the judges and displaying bias against the government, and was dismissed in August 1988.

Five Supreme Court judges who objected to the tribunal set up to decide Salleh’s fate were suspended. They were the late Tan Sri Wan Suleiman Pawanteh and Tan Sri Eusoffe Abdoolcader, Tan Sri Azmi Kamaruddin, Tan Sri Wan Hamzah Salleh and Datuk George Seah.

After Salleh’s dismissal, a second tribunal was convened to deal with the five judges, resulting in the dismissal of Wan Suleiman and Seah, while the others were acquitted.

Another amendment in 1988 resulted in Article 121 (1)(A), which stipulated a separation of jurisdictions between the civil and syariah courts, whereby the former would have no say over any matter under the syariah court’s purview.

“The amendment left many unanswered questions. It was done with good intentions so that only lawyers trained in syariah law would handle syariah issues,” Shad said.

“However, it does not offer a solution when one party is a non-Muslim, when there are international implications, if it is a constitutional issue and involves a remedy which the syariah court has no right to grant such as habeas corpus and mandamus (the domain of the High Court).”

In recent years, there have been cases where a non-Muslim party to a case has been told to seek recourse at the syariah court.

“The civil courts have started to abdicate or cede jurisdiction when there is the slightest whiff of an Islamic issue,” Shad said.

“The syariah court has broken the dyke, the civil court has looked the other way.”