HINDRAF’S CLAIM AGAINST HER MAJESTY’S GOVERNMENT

A FOOTNOTE AT THE HEAD

The High Court in the United Kingdom has thrown out the suit brought by members of Hindraf and their leader Waytha Murthi (acting ostensibly on behalf of Malaysia’s Indians).

Our article below preceded that decision and warned of such an outcome. It is not the first time we have in one way or the other attempted to bring the futility of this action in its current form to the attention of Waytha Murthi and his group.

The High Court of the United Kingdom’s decision is a sad indictment on a man and his organization that purports to act on behalf of what they call “the most vulnerable and marginalized community in Malaysia“. The Tamils.

With the squandering of yet another golden opportunity to redress the wrongs against them, it is not hard to see why the Tamils of Malaysia continue to be marginalized. Their ‘marginalization‘ has noting to do with a so called “racist constitution” but more to do with the bloody mindedness and incompetence of a group of Tamils who lead that community.

HINDRAF CLASS ACTION- FIRST PRINCIPLES

In bringing a class action (or representative proceedings) against a state, there are certain additional burdens on a plaintiff over and above that which is prescribed in the law and rules in force.

Whilst there were and remain residual problems arising out of Britain’s colonization of Malaya, the Chinese placed in a much more precarious position then than the Indians or Malays, (no China to return to) regrouped, took stock of their position in a brave new world, made bold decisions and went on to prosper.

The Malays as a nation, as a people were subjected to British maladministration, humiliation  and subjugation during the entire colonial period. They endured the confiscation of their lands, the destruction then bastardization and dilution of their culture and their identity under British rule.

Forced changes to the Malay culture and degradation of their cultural institutions and their rights by the British, in order to accommodate the interests of the Indians and Chinese (and the British) did not stand in the way of their determination to regain control of their destiny post independence.

None of these changes imposed on Malaya and the Malays were by consultation or consent of the Malay people. Inspite of this form of cultural genocide and exclusion of the Malays from the mainstream and whilst accommodating the needs of the other two races in Malaysia, The Malays have survived not only political abuse, but also marginalization. They did continue to live with the constitution that in fact continues to discriminate largely against them. It is a constitution that continues to favour the Chinese and Indians.

It was therefore not only the Tamils who suffered under the British. That view is a convenient distortion of the truth  and of history. It is destined to fail if pleaded as such in this action against Britain and the Queen in the UK action.

WHO IS THIS CLASS AND HOW DO THEY CONSTITUTE A CLASS AFFECTED?

What is not recognized by Waytha Murthi and his fellow claimants in this action is that they have yet to establish a class of persons against whom the ‘negligence’ of the British administration affected to warrant the relief they seek in damages. They have not identified an obligation under law the British had towards them which Britain neglected.

The pre condition for such a class action in Britain requires an identifiable class (opt in and opt out) who agree to be bound by the courts decision. The courts could also impose punitive decisions against a claimant in the event it finds the claim to be without merit.

The claimant would also needs to identify with clarity a cause of action and a proper defendant. Hindraf has done neither once again.

In pursuing such an action one must be mindful the courts could hand down a punitive costs order against a claimant and those it claims to represent as a ‘class‘  in that action. And further everyone in that class will be bound by any decision including the penalty of a costs order, if the representative plaintiff (Waythaymurthi and Hindraf in this case) fails to prosecute the action efficiently. Often in such cases the costs orders are made as exemplary costs orders against a desultory and reckless plaintiff (wasting the courts and defendants time and resources).

If Hindraf and Waytha Murthi via Imran Khan (their UK lawyer) have managed to overcome the legal procedural threshold for that identifiable class, (identifying a proper defendant and the duty of care) to gain traction for their action, then well and good for them. But much more needs to be done reach that threshold. 

Waytha and Hindraf need to take a few steps back and re consider their plan of action to determine who it is their action is designed to serve.

IS THIS A CLASS ACTION OR A BACK DOOR ATTEMPT AT REDRAFTING THE CONSTITUTION?

The difficulty for Waytha can be found in his idea and interpretation of the constitution and definition of what the constitution really is. Waytha and Hindraf  possess a shallow uninformed view of and  understanding of the constitution and what it really is in the broader scope of interaction between government, its subjects and the laws of Malaysia.

The Waytha Hindraf interpretation and view of the constitution is no different to that held by Ambiga Sreenivasan, the Malaysian bar and their cronies in opposition. Almost all of them believe the constitution to be a piece of legislation (Waytha’s own words on his website) which it is not. In fact although the pre amble to the constitution says “the constitution is the supreme law of the Federation of Malaysia” (an American idea) the constitution is no law.

The constitution simply put is a set of rules both written and by convention and custom that binds the laws and sets out the parameters and rules of interaction between the various arms of government,  its subjects and institutions and persons external to it.

More destructive and an obstacle to the action against the crown is Hindraf’s (and by that I mean Waytha Murthi’s) very poor understanding of the law and how the courts operate in applying the law. This fundamental defect is no different to that faced across the board by the opposition parties in Malaysia in general.

EVIDENCE -THE EFFECT OF TIME AND HISTORY ON THE CLAIM

Leaving technical argument aside for the moment, one must critically consider the effect on all parties to this action brought about by the effluxion of time that’s come to pass since independence.

It would be unfair to all parties concerned for the passage of time that has passed since independence from Britain. For what time does to any surviving witnesses of events, to the reliability of evidence and recollection of events, other than for those documents that have survived the passage of time, would render any action of this sort a perilous journey for the claimant.This does not mean that a claim should not be brought or that any injustice should go unpunished.

Britain would argue in turn in its defence, that Malaya and its subjects then claimed to be ready for independence.  Britain then  acting in accordance with the wishes of its Malayan subjects, granted them the Independence they sought, with all its responsibilities and privileges and left their affairs from then on to them (Tamils included) to manage.

Britain might also argue that in the circumstances that prevailed at the time of independence, they departed Malaya in as orderly a manner as they could afford to. That whilst also taking into consideration its own interests, as it was then entitled to protect, it had also to consider other priority interests in balancing the needs of the other two races apart from the Malays in Malaysia.

The needs of the Malays and Chinese  was not an insignificant consideration to balance against what was then (if true) the demands and considerations of a minority of mainly Tamil labourers in Malaya.

They would also likely argue in their defence the very real and present danger of the threat of a communist take over of the peninsula and the position of Singapore they had to consider amongst other things.

The British it may be said failed in many ways to provide or compensate the Malayan people adequately for the damage of colonization to all the people’s of the region. And that point needs addressing. However in bringing a suit against the crown, one needs more than rhetoric, martyrdom and general assumptions driven by emotion.

MALAYS CHINESE INDIANS- ASPIRATIONS AND STYLES OF LEADERSHIP

The Tamils (Indians) at independence and prior to it were in many cases managed in their roles and position in society by an entrenched class and caste system.

For Indians (Tamils especially at the time) this system over rode any legal or constitutional imperatives imposed on them by Britain or the newly independent Malaya. In fact the system of class and caste continues to be practised amongst Tamils ( as well as other Indians in Malaysia). It is a bane on all Indians in Malaysia even though it exists in subtle and concealed forms within the other Indians in Malaysia. Waytha has acknowledged this point himself previously.

The Indians once dominated the Malaysian public service, education and health. And more importantly they dominated the legal fraternity till at least the late 60’s. For this Britain could not be held responsible if the Tamils neglected their own in that time. 

That is again not to say the British have no culpability for the plight of the Tamil Indians or Indians, Chinese and Malays in Malaysia. In any event Indians were represented at all levels at the conferences that preceded the creation of the Malayan constitution.

It is fact that Indians dominated the legal profession and not simply the public service and they could not be said to have had no insight or  opportunity to input into what was developing in Malaysia in terms of the future constitution of Malaysia.

Indians had the benefit of the Indian independence movement to draw from at the time. New Delhi had its own designs on an independent Malaya to be administered as the British had done from Delhi. In much the same way the Chinese had their own designs for Malaya through Chin Peng and Beijing.

HINDRAF NOT FOCUSED-  SQUANDERING ANOTHER GOLDEN OPPORTUNITY

Waythat Murthi is not focusing on a proper strategy in his claims against the government of Her Majesty in the High Court of the UK in London. To be kind to him it appears that this action now is nothing more than an extension of  an earlier scripted pantomime in which he and a small coterie within his group played the role of martyrs and heroes against a backdrop of the misery of all others who constitute Malaysia .

Waytha eschews proper legal and strategic advise and does not have the interests of all Indians or Malaysians at heart in this matter. In place of a broader and more just strategy he prefers his isolated view of the world. His own view of the world is underpinned by the outdated and unproductive vain strategy of emotion sans logic, the curse of the Tamil working class in Malaysia.

The British government are tolerant and will in furtherance of their self serving interests of justice, give Hindraf a hearing, in order for them to destroy themselves and any future opportunity for the Tamils to hold Britain responsible for its misconduct during the colonial period in Malaya.

Imran Khan the lawyer Hindraf has engaged is a man who is driven by public interest litigation and that is perhaps the only saving grace in this action. However if the pleadings Waytha and his mates drew up in 2007 or 2008 in this matter is what is placed before the High Court of the UK without radical amendments made to it, God Save not just the Queen but all of us as well.

GET THE BASICS RIGHT- BE INCLUSIVE-PRESENTATION IS EVERYTHING

The set of pleadings drawn up in 2007-20087 is embarrassing. It lacks particularization, fails to disclose a proper cause of action and is defective in almost every respect of pleadings. It fails to properly plead and to particularise those facts that would go to evidence in any trial. And the prayer of relief in their claim is disproportionate to the allegations of negligence pleaded therein.

Waytha is an emotional and sensation driven politician. He attracts a like following amongst the Tamils in Malaysia. Waytha for this very reason must take great care by seeking counsel for his actions lest he fall into the same trap many a politician who had stewardship of the Indians fell into. And it appears from his record what he is doing is no different to that of his predecessors in office.

Unless Hindraf and Waytha alter their strategy in their pursuit of justice by identifying the injustices first and doing it properly and in a professional manner, they risk setting back any advances the Indians have made (and they have made significant progress over the years in Malaysia) by decades.

Waytha and Hindraf further risk alienating and perhaps even severing what’s left of the good relations the Indians enjoy with the other two races especially the Malays.

IF IT IS THE CONSTITUTION THEN JOIN THE OTHERS OR FAIL ALONE

If the constitution is racist, it is racist against all Malaysians. If it is unjust, it is unjust against all Malaysians and not the Tamils alone. Hindraf fails to identify the class of people who bring this action and who amongst this class are the potential beneficiaries of this action. They fail to determine for the rest of the Indians how they are qualified to be in this class.

There has been no consensus amongst the Tamils or other races as far as we are able to ascertain, not that this is necessarily fatal to bringing a class action in the UK. But if it is in the interests of all Malaysians (using the Indian case) then there has to be consensus and consultation.

These two elements are missing in Waytha’s quest for “justice, constitutional change and democratic rights”, unless of course his pursuit for justice is only for Tamils who support him. In such a case his quest is for race specific rights and must in all conscience fail.

If the Malaysian constitution is defective as he claims it is and discriminatory as he also claims it to be, then it cannot be changed without consultation with the other two major race groups who are in a more significant majority in terms of their contribution to the nation let alone in numbers.

If Hindraf’s claim in the UK courts is to also seek to re define the constitution of Malaysia,Waytha needs to consult with all Malaysians. If he has not been doing this, then Waytha must fail and the Indians need to find a more consultative, inclusive and bolder leadership and representative than Hindraf is under Waytha Murthi and his brothers.

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