Tommy Thomas: Putting the Record Straight on Citizenship Issue

January 23, 2012

http://www.malaysiakini.com

COMMENT: The widespread publicity given to the recent statements made by former Prime Minister Dr Mahathir Mohamad that:

1. Immigrants from the Philippines were given citizenship in Sabah in the 1990s during his administration;

2. they were lawfully done; and

3. former Prime Minister Tunku Abdul Rahman “had done worse” by giving citizenship to “one million unqualified people” in Peninsular Malaysia, lamenting that no one had made it an issue;

The above have to be rebutted and the record put straight. The “sincerity” of his admissions, coming in the wake of evidence at the Royal Commission currently inquiring on the origins and consequences of immigration into Sabah, must be questioned.

Like disgraced cyclist Lance Armstrong, Mahathir only came clean after years of denial when he had absolutely no choice because of the overwhelming evidence being publicly uncovered.

When the truth finally emerged, Mahathir made his admissions. And like Armstrong, it was selective, self-serving and without any contrition. But worse than Armstrong, he blamed others. To put it plainly, there is no parallel between these two episodes in the nation’s history.

Malaya in 1957

Under the Federation of Malaya Agreement of 1948, Malays automatically became federal citizens, while non-Malays acquired citizenship by fulfilling residential qualifications. In 1953, out of the total population of Malaya of 5.7 million, some 1.3 million (nearly all of whom were non-Malays) were not citizens. Thus, for the non-Malays, ‘citizenship’ based on the doctrine of jus soli was a critical matter.

Large scale immigration into Malaya first occurred in the Malacca Sultanate in the 15th century. Trade brought Arab, Chinese and Indian immigrants, and they formed distinct settlements in Malacca. Thus, immigration pre-dated the first European colonial conquest, by the Portuguese in 1511.

Major waves of immigration occurred after direct British intervention in Perak under the Pangkor Treaty of 1874. When the British very reluctantly accepted, by about 1955, that independence had to be granted to Malaya, lengthy negotiations began between the British government, the Malay rulers and the Alliance coalition led by Tunku Abdul Rahman (right).

The Reid Commission of eminent jurists was appointed to draft a constitution. Its report, published in February 1957, was the subject of intense debate. Working groups were set up to study the Reid Report. The London Conference of May 1957 followed. The British government issued a White Paper in June 1957.

The final steps were the presentation of the Constitutional Bill in the British Parliament and in the Federal Legislative Council in Kuala Lumpur. Merdeka was proclaimed on August 31, 1957, with Tunku reading the Proclamation of Independence.

The issue of citizenship to non-Malays in 1957 cannot therefore be seen in isolation or in a vacuum. Instead, it was the result of a ‘give-and-take’ bargain among the various communities reached through consensus. The bargain was certainly not through the effort of Tunku alone, although he was the dominant personality. The other founding fathers, Abdul Razak Hussein, Ismail Abdul Rahman, Tan Cheng Lock and VT Sambanthan, also played important roles.

Subsequent commentators have described the Merdeka bargain as the ‘social contract’. Thus, the social contract reached by the three communities under the watchful eye of the British imperial power prior to Merdeka was, in essence, a bargain whereby in exchange for a place under the Malayan sun with full citizenship, a right to use their language and observe their religion, the non-Malays had to concede special privileges to the Malays to assist the latter to ascend the economic ladder.

It was a quid pro quo. In this equilibrium, the non-Malays were not to be relegated to second-class citizens: citizenship was not on a two-tier basis and there was going to be no apartheid, partition or repatriation.

What was required from the non-Malays at the time of Merdeka was undivided loyalty to the new nation.

Racial differences were recognised. Diversity was encouraged. There was no pressure to integrate into one Malayan race. Assimilation was out of the question. Thus, a united Malayan nation did not involve the sacrifice by any community of its culture or customs. Malaya was always to remain a plural society.

Sabah in the 1990s

What happened in Sabah when Mahathir was Prime Minister was entirely different. The decision to give Malaysian citizenship liberally and generously to nationals of Philippines and other countries was done secretly, with the sole purpose of securing and maintaining political power in Sabah.

It was naked, partisan politics to give electoral advantage to one party that underpinned the decision. When confronted, denials were made. Only when it became a major electoral issue in Sabah in the forthcoming general and state elections this year, did the present government, much to the unhappiness of Mahathir, appoint a Royal Commission.

And only when the truth emerged during its hearing, did Mahathir admit his role.To compare the Sabah episode with the gaining of nationhood in 1957 is not just historical revision. It is also not merely being economical with the truth. Rather, it is a blatant fabrication of facts.

Not only does it insult the roles played by our founding fathers in securing Merdeka from the British, it adds injury to millions of Malaysians whose parents or grandparents became citizens through this open, transparent and legal manner.

It must be remembered that no such citizenship issue arose when Sabah (North Borneo) joined Malaysia in 1963. Indeed, the Philippine government opposed the formation of Malaysia.

Their nationals only became Malaysian citizens in the mid-1990s, some 30 years after Sabah’s independence from the British. Finally, citizenship is a federal matter, and very much within the power and discretion of the Home Minister. Accordingly, the two exercises of granting citizenship cannot be treated in a similar fashion.

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TOMMY THOMAS specialises in constitutional law. He conducted substantial research in the events leading up to Merdeka in the course of preparing two papers presented at the Malaysian Law Conferences in 2005 and 2007, subsequently published as ‘Is Malaysia an Islamic State?’ and ‘The Social Contract: Malaysia’s Constitutional Covenant’ in [2006] 4 MLJ xv and [2008] 1 MLJ cxxxii.