Latest update (2 April 2015):
The Hindraf class action suit has been struck out by the London High Court. Read here.
Lawsuit to set aright an historical wrong
1. Hindraf’s civil suit against the British crown will get its first hearing this coming Monday (March 30) in the London High Court. It was refiled on 2 July 2012 after the initial suit filed on 30 Aug 2007 – preceding the historic Hindraf rally (25 Nov 2007) – had lapsed.
2. According to Hindraf chairman P. Waytha Moorthy, the unprecedented class action “is likely to expand the law beyond the current narrow interpretations of the law of tort and international laws”. He also expects the case to cause great embarrassment to Whitehall.
3. Waytha, who is representing the claimants (descendants of indentured Indian labour), says that the British Nationality Act 1948 meant that the third and fourth generation of Indian plantation workers in Malaya were citizens in a UK colony as India had been under British rule.
By virtue of these rubber tappers being citizens of a British colony, Britain owed a duty of care to them and the other Indian workers imported into Malaya by the colonial masters. The Hindraf class action suit calls to account the British government for its role in the marginalized socio-economic status of the Indian community today as a result of racial discrimination.
4. The Government of Her Majesty the Queen, contends Waytha, was negligent in duty as it failed to provide a Malayan constitution that met the minimum standard upon its departure from the country. He further contends that our constitution was not consonant with the international standards of human rights that existed in 1957.
5. Waytha characterizes the federal constitution as one where the British failed to appreciate the vulnerable and peculiar position of the Indians who remained in Malaya after Merdeka as well as failed to protect and preserve their rights and interests.
According to the Hindraf lawsuit, the federal constitution is a “compromised” document. The Reid Commission mandated to draft the Malayan constitution had deferred to the recommendations introduced by the working party despite the inequality of citizenship rights due to the amendments where the rights of one racial and religious group surpasses that of other racial or religious groups.
The working party was headed by the British High Commissioner in Malaya but controlled by the Alliance government and the Malay Rulers.
6. The working party caused to be removed, from the final version of the Malayan constitution, certain crucial provisions and recommendations made by the Reid constitutional commission as well as added certain other provisions that defeated the original spirit of draft, says Hindraf.
“What is even more disturbing is that the non-Malays do not have rights but only ‘legitimate interests’ under Article 153 of the constitution,” Waytha notes.
7. Hindraf national adviser, N. Ganesan says the court process is tantamount to taking on the British establishment: “The documentary evidence we have collated is overwhelming. Hindraf has established the reputation of doing the unthinkable, unparalleled in the history of our country. We will do as we say, no matter its difficulty and say only what we intend to do.”
8. According to Hindraf, the London constitutional conference had specified in its terms of reference for the creation of the new Malayan constitution that the rights, welfare and interests the Indian labourers were to be safeguarded.
It was this London conference that provided the mandate for the Reid constitutional commission to formulate the Merdeka constitution.
9. Although the Indians left behind were soon to become permanent settlers, the British had failed to grant them land titles at the advent of Merdeka.
Hindraf accuses the British of “failure to ensure all Hindu temples, crematoriums, graveyards, Tamil schools and community halls that existed on the day of Independence on 31 Aug 1957 were legalized and issued with land titles”.
10. As a result of the British government’s dereliction of duty, the Indians have remained a “permanently colonised community“, alleges Hindraf. Speaking from London to FMT, Waytha points out that it is not only the Indians who have been neglected by the constitution but other ethnic groups too.
“Though the Orang Asli are the original inhabitants in the peninsula, their rights and interests were not represented during the drafting and granting of the Malayan constitution,” Waytha points out. “There is no special provision to protect their position nor is there any recognition of their status as the original inhabitants of Malaya.”
Summing up the lawsuit, Ganesan says, “No amount of falsehoods or belittlement of our actions by these deceitful and selfish detractors [sceptical of our purpose] will stop us from powering ahead. We are driven by our unwavering belief in justice.”