Waytha Moorthy Ponnusamy and six others v Secretary of State for Foreign and Commonwealth Affairs
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 30 March 2015 |
| Neutral Citation | [2015] EWHC 1760 (QB) |
| Docket Number | Case No: HQ12X02663 |
| Court | Queen's Bench Division |
| Date | 30 March 2015 |
2015 EWHC 1760 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Blake
Case No: HQ12X02663
Martin Chamberlain QC (instructed by Treasury Solicitors) for the Defendants
Joel Bennathan QC (instructed by Imran Khan) for the Claimants
Hearing dates: 30 March 2015
Approved Judgment
Introduction
This is an application made by the defendant Secretary of State to strike out the Particulars of Claim (POC) and enter judgment for the Defendant pursuant to CPR 3(4) because they disclose no reasonable grounds for bringing the claim. In the alternative, summary judgment on the whole claim is sought pursuant to CPR 24 (2) on the grounds that the claimants have no real prospect of succeeding and there is no compelling reason why the case should be disposed of at trial. In either case it common ground that real prospects of success mean something more than merely arguable.
The claim is question is a part 7 claim that was issued on 2 July 2012 and POC were served in April 2013. I shall for the purpose of these proceedings assume that the facts set out in those particulars are true.
The pleadings have been supplemented by three witness statements from Mr Ponnusamy for the claimants and two from Mr Todd of the Asia Pacific Directorate of the FCO.
The seven claimants were all born in what is now Malaysia on various dates between May 1950 and July 1966. I use the term Malaysia although from the nineteenth century to date there have been many changes in the constitutional status of that nation, its territory and name. An instructive history of how a patchwork of separate territories came to be governed after 1858 when the East India Company ceded its possessions to the British Crown is to be found in Fransman's Nationality Law (3rd edition) 2011 at section B.132.
In respect of the lead up to the events with which this claim is concerned it can be noted:-
i) In 1946 the Malayan Union was created consisting of nine Malay states that were British protectorates with traditional rulers who were also Islamic religious leaders, and the crown colonies of Penang and Malacca.
ii) In 1948 the Union was replaced by Federation of Malaya that was created with its own local citizenship and constitutional arrangements for governance with elected representatives.
iii) In August 1957 the Federation of Malaya became an independent country within the Commonwealth but those who were CUKCs by reason of their connection with Penang and Malacca were permitted to keep that status.
iv) In 1963 the former dominions of Singapore, North Borneo and Sarawak joined the Federation and the new state of Malaysia was created, but Singapore with its predominantly Chinese population was expelled from Malaysia and became an independent state in 1965.
The POC do not reveal the nationality of the claimants but I was informed that the first six claimants are Malaysian but the seventh claimant has difficulty in proving her entitlement to Malaysian nationality because of the absence of a birth certificate for her mother. The particulars state that ethnically they are all south Indian in origin and some/all are Hindu by faith. Their ancestors all came to Malaysia in the nineteenth or early twentieth century as indentured labour to serve the Malaysian economy at a time when both the economy and the institutions of government were dominated by the British.
The essence of the particulars is that the interests of the Indian (mainly Tamil speaking) population of Malaysia were ignored during the period 1944 to 1957 when independence was agreed with a constitution that provided for an entrenched privileged position for the ethnically Malay community. It is contended that the community of mainly Tamil indentured labourers worked on British owned estates and mines. They did not speak the Malay language and many were illiterate and undocumented. They either did not have the right to vote in the emerging democracy after the Second World War or were not registered to vote and in any event were not politically organised or represented. As British subjects or protected persons before the coming in to force of the British Nationality Act 1948, and because the British government were aware of their vulnerable status it is contended that they were entitled to the special protection of the colonial power to safeguard their interests when sovereignty was ceded. It is then contended that this duty of protection was not property discharged, leaving them in a vulnerable position after independence from which each of the claimants has suffered with respect to access to higher education, employment in government, ownership of land, conducting business, the security of Hindu religious land and cemeteries and personal status with respect to registration of marriage and acquisition of citizenship.
Malaysian independence
Although I have concluded that the resolution of this application turns on legal principles relating to the law of tort, by way of background to the application of these principles, I will attempt a very brief and necessarily selective summary of some of the events and issues that led to Malaysian independence in August 1957. In doing so I have drawn from Mr Todd's first witness statement; extracts from the national archives quoted in the witness statements of Mr Ponnusamy (the first claimant) and an article he exhibits by Geoff Wade in the Asia Pacific Journal 'The origins and evolution of ethnocracy in Malaysia' (undated but written after March 2008).
Following the ending of the Second World War and the Japanese occupation of the Malay peninsula there was discussion as to the political future of the region. There were three broad ethnic groups in the country: Malay (or Bumiputra), Chinese and Indian. In 1951 a Cabinet minutes estimated the population of the Federation of Malaya as 2.5 million Malays, 2 million Chinese, 500,000 Indians and 70,000 others.
It seems that British policy favoured the creation of a single state within the Commonwealth of all the permanent inhabitants of the Federation under a common citizenship but recognised that the traditional rulers and the predominant strands of Malay political opinion favoured a political entity based on the historic religion, language and respect for the special status of the Malay people that had characterised some of the provisions of the treaties with the nine Malaya states by which British protection came to be afforded.
A Colonial Office memo of July 1944 cited by Mr Wade in his article referred to:
'participation in the government by all the communities in Malaya is to be promoted subject to the special recognition of the political economic and social interests of the Malay race'.
This prompted the then Supreme Commander of Allied Forces in South East Asia, based in Ceylon, Lord Louis Mountbatten to comment
"I cannot help feeling that in the long run nothing could perhaps to do more to perpetuate sectional antagonism ….than the giving of special recognition to ne race…I feel that our objectives should be to break down racial sectionalism in every way open to us, politically, economically and social and to endeavour to substitute for it the idea of Malayan citizenship".
The response from the Colonial Office stated:
"The Malays are, by general consent, not at present capable of competing on equal terms economically with the 'immigrant' races- Chinese and Indian. From the beginning of our relations with the States we have pursued in the Malay States the policy of taking positive measures to prevent the submergence of the Malays in the public services and in the ownership of the land by the more energetic, competent and resourceful Chinese. The most damaging criticism of new policy will be precisely on these grounds, since we are endeavouring to admit non-Malay communities to a political equality with the Malays in the State territories. We shall make certain of estranging the Malays unless we can assure them of measures not only in the political and social field which will prevent such 'equality' inevitably resulting in their submergence, but also in such matters as the reservation of Malay lands."
Lord Mountbatten was un-persuaded but in substance these two view points are reflected in the subsequent debates that led to the passage of the independence legislation and the adoption of 1957 Constitution that is the focus of these claims.
The Malay Union lasted from 1946 to 1948 and was based on a single citizenship. It was opposed by the United Malays National Organisation (UMNO) because they feared Malay dominance would be diluted. It was short lived and replaced in 1948 by the Federation of Malaya that created an additional local Malay citizenship that was to be basis of eligibility for the franchise and included the Malay subjects of the princely rulers of the nine states, those born in the territories of the Malay states who habitually speak the Malay language and conform to Malay custom. British subjects born locally who have resided there for fifteen years.
In 1949 the Malayan Chinese Association was founded representing moderate Chinese political opinion. At this time there was an armed insurgency by the Chinese dominated Malayan Communist party.
An alliance of the MCA and UMNO was formed that won electoral victories between 1952 and 1955. In 1954 the Malayan Indian Congress the largest Indian political party joined the Alliance. Mr Ponnusamy states that this organisation was not primarily concerned with the plight of indentured labourers on estates. The Alliance won 226 of the 268 seats nationwide in...
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