Particulars of Hindraf's claim as first filed on 31 Aug 2007. This forms 95 per cent of the 2 July 2012 refiling

IN THE HIGH COURT OF JUSTICE Claim No.

QUEEN’S BENCH DIVISION

BETWEEN:

WAYTHA MOORTHY PONNUSAMY (Suing in his personal capacity and as representing and for the benefit of all persons interested in and who are Malaysian citizens of Indian origin)
Claimant

-and-


SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS
Defendant

__________________________¬¬__

PARTICULARS OF CLAIM
____________________________

1. The Claimant is and was at all material times a Malaysian citizen bearer of identity card number A 0480890 and Malaysian Passport number A 14915290 a Barrister of The Honourable Society of Lincoln’s Inn currently practicing as an Advocate & Solicitor of the High Court of Malaya in Ipoh and residing at No 39 Desa Lang Indah 5 30200 Ipoh Perak Malaysia.

2. The Defendant is officially in charge of managing the various British Colonies including Malaya (as it was then known) and is principally responsible for promoting the interest of the United Kingdom abroad who has an address for service at FCO Main Building, Whitehall, King Charles St, London, United Kingdom.

3. The Claimant is a Malaysian citizen of Indian origin born in Malaysia (formerly known as Malaya) on 16th July 1966 who is the second generation of Malaysians of Indian origin and the lawful son of Ponnusamy Arunasalam deceased( 19.11.1992) who was a Malaysian citizen of first generation.

4. The Claimant brings this action on behalf of himself and on behalf of and as representing and for the benefit of all the persons interested in and who are Malaysian citizens of Indian origin.

5. The Claimant’s paternal grandfather known as Arunasalam (hereinafter referred to as the paternal grandfather of the Claimant)was a citizen of India then (now known as The Republic of India) who was forcibly and through actual undue influence employed by the Defendant’s Colonial Servants together with hundreds of thousands were brought in from India as indentured labourers then into Malaya who have now become the citizens of Malaysia.

6. The Claimant avers that the right to initiate this action also culminated from the common law rights and interest acquired, inherited and possessed by the Claimant’s paternal grandfather and hundreds of thousands of others hereinabove referred to in Paragraph 5 which common law rights and interests continues to exist in perpetuity and does not extinguish on the demise of the Claimant’s paternal grandfather and father and the hundreds of thousands of others.

7. The Claimant avers the forcible migration under actual undue influence exercised hereinabove referred to in Paragraph 5 was carefully engineered by the Defendant’s Colonial Servants serving in India to export such manpower to meet the immediate needs and necessities of Her Majesty’s Colonial Government serving in Malaya then.

8. The Claimant avers such export and manpower was critical and necessary to man, fuel and served almost all British interest then existing in Malaya which was at all material times profit motivated and benefited the Defendan financially.

9. The Claimant avers such manpower was utterly necessary to serve the rubber and other plantation industries, to construct and built railway lines including the death railway lines, roads, buildings, clearing virgin jungles, waterworks, public utilities, to serve in the Army, Police Force, Fire Department, Telecommunications, Postal, Hospitals, Public Works Department, National Electricity Board, and the Civil Service (hereinafter collectively referred to as essential services).

10. The Claimant avers the aforesaid manpower was absolutely necessary without which the Defendant’s Colonial Office stationed in Malaya would be under manpowered, ill equipped and could effectively stifle and threaten the operations of the Defendant’s Colonial Government in Malaya

11. The Claimant avers that the Defendant’s Colonial Government in Malaya could not employ the local Malays for they lacked cooperation, tolerance, understanding, initiative, intelligence and loyalty. Hence the forced migration hereinabove referred to in Paragraph 5 became ever more necessary.

12. The Claimant avers that these relevant and material facts are well within the knowledge of the Defendant’s past and present Governments and shall continue to remain an indisputed fact.

13. The Claimant avers that the forced migration referred to in Paragraph 5 hereinabove was carried out by the Defendant’s Colonial Office in India and Malaya in stages.

14. The Claimant avers that by reason of the control and management of India both politically, socially and economically by the East India British Company an incorporated body of the Defendant’s Government in London, the forced migration referred to in Paragraph 5 hereinabove was primarily focused on the South Indian States.

15. The Claimant avers that after much thought and planning the Defendant’s Colonial Office in India engineered a masterpiece to forcibly and through actual undue influence exported manpower into Malaya which conduct and behavior was and is regarded to be unconscionable, unfair and against the policies and regulations of International Legislations and Conventions.

16. The Claimant avers that all those who were exported then forcibly or through actual undue influence could not resist, could not protest, could not object nor could challenge the might of the Defendant’s Colonial Office in India but to succumb to their demands and orders.

17. The Claimant avers that the human export hereinabove referred to was absolutely necessary for the following reasons :-

i. in the early 18th century the rubber, sugar cane, oil palm, cocoa, tea and coconut plantations were flourishing;

ii. for instance the acreage under rubber had increased from about only 350 acres in 1877 to about 20,000 in 1914 and 43 000 acres in 1920 and by 1940 it reached over 2 million acres making Malaya by far the world’s largest producer of natural ‘Raja Rubber’;

iii. in 1918 exports of rubber from Malaya amounted to about 50% of the world’s total rubber consumption thus this demanded greater human export of South Indian manpower;

iv. the rubber rush of the early decades hereinabove referred to also allured and tempted the Defendant’s Colonial Government with fabulous profits and fortunes;
v. by 1913 the British capital investments in Malaya amounted to 40 million pounds and by 1923 it rose to more than 100 million pounds;
vi. since the indigenous Malays did not come forward to work as labourers in the plantations for fixed hours of daily work, the planters through the assistance of the Defendant’s Colonial Office in India looked towards South Indian labourers in particular for the Defendan’s purpose of human export;
vii. the Defendant’s Colonial Office in India considered the South Indian labourers to be the ideal labouring material for the furtherance of their capitalist endeavours in Malaya;
viii. the South Indian labourers were considered to be the most suitable and satisfactory type especially for the simple repetitive and routine works and hence they became the mainstays of the plantations;
ix. the South Indian labourers were malleable, worked well under supervision and was easily manageable and most were amenable to the comparatively lowly paid and rather regimented lives of estates;
x. the South Indian labourers were also the ‘best metal breakers’ and was especially adopted for road making;
xi. as the indigenous population became unable to meet the growing demands, the Defendant’s Colonial Office had to draw their supplies mostly from South India.

18. The Claimant avers that on their arrival in Malaya, the South Indian labourers (especially those Tamil speaking) were quickly absorbed into suitable employments but however the medical attention and facilities offered to these labourers were very unsatisfactory. There were many defects in the public health system and most of the hospitals in the plantations in Malaya did not possess qualified medical and paramedical staff, consequently many labourers on the plantations especially succumbed to disease.

19. The Claimant avers there were also inadequate medical aid and attention during the voyages (i.e. from India to Malaya). The journey by ship was under overcrowded and inhuman conditions resulting in high mortality. Innumerable cases were reported wherein the very journey across the sea and from the estates to hospitals aggravated the conditions leading to the death of these labourers.

20. The Claimant categorically avers and repeats that to a larger extend the human export exercise adapted and employed by the Defendant’s Colonial Office in India were either done forcibly or through actual undue influence:-

Particulars of Force:-

i. Colonial Office in India then created an indenture system as a new system of slavery;
i. Her Majesty’s Colonial Office in India then used extra economic and penal methods to recruit those labourers and they lived in a state of virtual bondage ;
ii. Her Majesty’s Colonial Office in India then subjected those labourers to debt bondage and hence their migration was forced and involuntary i.e. the labourers were more pushed than pulled ;
iii. Her Majesty’s Colonial Office in India then had to export South Indian labourers in particular since the Malays did not come forward to work as labourers in the plantation;
iv. Her Majesty’s Colonial Office in India then acknowledged and recognized that the South Indian labourers were considered to be the ideal labouring material for the furtherance of the capitalist endeavours in Malaya;
v. Her Majesty’s Colonial Office in Malaya then acknowledged a material and relevant fact as the indigenous and Malay population became unable to meet the growing demands, Her Majesty’s Colonial Office in Malaya then had to draw their supplies from South India on account of it’s close proximity and advantageous terms;
vi. Her Majesty’s Colonial Office in Malaya and in India then recognized that the South Indian labourers were loyal, hard working, dedicated, obedient and worked in the most treacherous, near slavery deplorable and appalling conditions hence human export by force became easy;
vii. Thousands of these exported South Indian labourers died as a result of malaria, exhaustion, near slavery living and working conditions. Many lonely graves but without tombs scattered all over Malaya stand testimony to this exploitation.
viii. Her Majesty’s Colonial Office in India then employed various illegal methods to recruit South Indian labourers and some of those illegal methods used are as follows; indulged in coercion, malpractice, kidnapping, catching recruits at the weekly shanties(markets), seducing young men with the promise of getting them married in the colony (Malaya), inducing them to leave their homes, matching strangers as brothers, father and son, brother and sister, husband and wife, misrepresenting on the nature of work, forging signatures, colluding with the kanganis, (village heads) colluding with the local village officials which prompted them to recruit labourers unlawfully through fraudulent methods;
ix. Her Majesty’s Colonial Office in India then was very dominant and hegemonic employed methods which ranged from paternalism to brutal arbitrariness.

21. The Claimant further avers that his grandfather and hundreds of thousands of others and their descendants who are now Malaysian citizens were forcibly exported from South India by Her Majesty’s Colonial Office was procured through actual undue influence.




Particulars of Actual Undue Influence:-

i. the Claimants grandfather and hundreds of thousands of others were misled and misinformed regarding the nature of plantation work in Malaya by Her Majesty’s Colonial Office in India then prior to human exportation;
ii. the Claimants grandfather and hundreds of thousands of others were illiterate and cheap docile labourers influenced by Her Majesty’s Colonial Office in India to forced human exportation;
iii. Her Majesty’s Colonial Office in India then prior to the forced human exportation informed the Claimant’s grandfather and hundreds of thousands of others of the massive demand exclusively for unskilled and manual labour in Malaya then;
iv. Her Majesty’s Colonial Office in India then prior to the forced human exportation informed the Claimant’s grandfather and hundreds of thousands of others that there is a demand for labour in agriculture and the living conditions were encouraging;

v. Her Majesty’s Colonial Office in India then prior to the forced human exportation informed the Claimant’s grandfather and hundreds of thousands of others that better wages and living conditions were provided for in Malaya;
vi. Her Majesty’s Colonial Office in India then prior to the forced Human Exportation informed the Claimant’s grandfather and hundreds of thousands of others the advantages of migration, employed indigenous devices, enticed the illiterate and ignorant village folks into exportation;

22. The Claimant further avers that these are some of the indigenous devices used by Her Majesty’s Colonial Office in India then to forcibly export the Claimant’s grandfather and hundreds of thousands of others from India now known as The Republic of India.

23. The Claimant avers that his grandfather and hundreds of thousands of others were misled and coerced into forced human exportation where their confidence was reposed and betrayed.

24. The Plaintiff avers that by reason of the colonization the wrong doer exerted force and undue influence on the Claimant’s grandfather and hundreds of thousands of others to accept the exportation which was impugned.

25. The Claimant avers that the methods employed by Her Majesty’s Colonial Office in India then were manifestly and conspicuously disadvantageous to the persons influenced.

26. The Claimant avers that his grandfather and hundreds of thousands of others had to accept the human exportation and were not acting independently and had no full appreciation of what they were doing and they had no competent and independent advice.

27. The Claimant avers that there exist no express affirmation in this exportation and this claim shall not be defeated by estoppel or by delay amounting to acquiescence.

28. The Claimant avers that the actual coercion employed by Her Majesty’s Colonial Office in India then are illegitimate and they exercised such a degree of domination and control over the Claimant’s Grandfather and hundreds of thousands of others that the latter’s independence of decision was substantially undermined and impaired.

29. The Claimant avers that by reason of the colonization of India Her Majesty’s Colonial Office had the capacity to influence the Claimant’s grandfather and hundreds of thousand of others into human exportation.

30. The Claimant avers that by reason of the colonization of India Her Majesty’s Colonial Office had the might and power to influence the locals into exportation which influence was necessary if the empire were to thrive and survive. The methods employed then and thus far adumbrated hereinabove constituted actual undue influence which brought about the impugned human exportation.

31. The Claimant avers that while the human exportation was necessary for the survival of the Empire, on arrival in Malaya the Claimant’s grandfather and hundreds of thousands of others were initially subjected to strict indenture rules wherein the benefits and privileges accorded to them were limited and restricted until such time confidence was gained by Her Majesty’s Colonial Office in Malaya.

32. The Claimant further avers such confidence building was necessary to ensure that those exported do not halt and hamper the Defendant’s interest in Malaya for any setbacks could be costly and can bring about devastating results which may not be favourable in the furtherance and pursuit of the Defendant’s profit motivated endeavours outside Great Britain.

33. The Claimant avers for this purpose and to facilitate the Defendant’s endeavours the selection of the said human exports had to be carefully done to ensure they were tolerant, loyal and faithful to the Defendant. These measures are critical and necessary to ensure optimum usage and exploitation of those exported.

34. The Claimant further avers that while in Malaya those exported were deliberately and intentionally subjected to harsh and inhuman and / or near slavery working conditions, had to work long hours in the most treacherous of conditions, health and welfare of the said exported humans who were seriously and recklessly neglected and they were unable nor allowed to voice their grievances. All these were utterly necessary to champion the hidden agenda of the Defendant.

35. The Claimant further avers unless such rigid conditions were adapted and employed, it is quite impossible to sustain the progress, advancement and continued survival of the Defendant’s Empire then.

36. The Claimant avers such tactics and measures employed by the Defendant were wrong in law, constitutes serious violation of human rights, resulted in the deprivation of civil liberties and civil rights against all international norms, legislations and conventions and further constituted an unfair and unconscionable conduct and traveled against basic principles of public order and morality.

37. The Claimant avers that in the absence of such rigid rules and measures, the Defendant would have suffered a natural defeat in Malaya for the local Malays then were not so cooperative and those residing in the Federated and Unfederated States of Malaya vigorously resisted the Defendant

38. The Claimant avers that the presence of the said human exports transported from India on a piecemeal basis and on arrival in Malaya strengthened and solidified the presence of the Defendant in Malaya then.

39. The Claimant further avers while in Malaya, the Defendant took advantage of the Chinese community to further strengthen and enhance their presence. By reason of the social joint venture to glorify Malaya, the welfare, rights and interest of the south Indian labourers were neglected and compromised.

40. The Claimant further avers such diplomatic maneuvers were necessary to deceive both the said human exports and the locals who were not compatible nor possessed the intelligence to either resist or win the Defendant.

41. The Claimant avers the conduct of the Defendant in Malaya was beyond human comprehension that they created illegitimate devices and colluded with the local Malays to exploit and capitalize the poor, helpless and destitute South Indian labourers such as the Plaintiff’s grandfather and hundreds of thousands of others.

42. The Claimant avers the mechanism used by the Defendant to exploit them in Malaya was self serving and created innumerable and greater advantage for the Defendant.

43. The Claimant avers such wealth created, generated and garnered through them were phenomenal which directly and indirectly assisted and facilitated the Defendant in the most immeasurable and incalculable ways both domestically and internationally.

44. The Claimant further avers that as time progressed, those human exports quickly adapted to local conditions and rigidity. In appreciation of their immeasurable contribution for the continued presence and survival of the Defendant, Her Majesty’s Colonial Office in Malaya provided from time to time some basic facilities , necessities and amenities such as the establishment of vernacular elementary schools, estate hospitals (largely manned by amateur hospital assistants), temporary estate long houses (principally enjoyed only while in employment), establishment of places of worship to profess and promulgate the faith and religion of their choice.

45. The Claimant avers the force and actual undue influence employed by Her Majesty’s Colonial Office in Malaya to procure the human exportation coupled with the token of appreciation adumbrated in paragraph 44 hereinabove encouraged their continued presence in Malaya then.

46. The Claimant further avers by the mid 20th century it was impossible for the Defendant and Her Majesty’s Colonial Office in Malaya to completely not recognize those critical facts hereinabove set out.

47. The Claimant avers by the mid 20th century those human exports from India then became an integral part of the Malayan society and the economy then. Those exported continued to strive to serve purely the peculiar interest of The Defendant in all segments and sectors of the Malayan society and they became an inseparable force whose absence could seriously handicap and hamper Her Majesty’s Colonial Office operations in Malaya.

48. The Claimant avers those human exports played a major and key role not only in the plantation but also in the Malayan civil service wherein Her Majesty’s Colonial Office categorically promised and assured that their interests and rights would be vigorously advocated, safeguarded and properly protected when the Proclamation of Independence was to be announced. The Claimant emphasized that after 1945, Her Majesty’s Government engaged in a systematic series of liquidating Her Majesty’s empire, thus Malaya was no exception and it was a matter of time before it acquired hers.

49. The Claimant avers to facilitate the Proclamation of Independence for Malaya, Her Majesty the Queen on 7th March 1956 allowed and permitted the publication and circulation of The Federation of Malaya White Paper Number 15 of 1956 to make recommendations for a form of Constitution for a fully self governing and independent Federation of Malaya within the Commonwealth.

50. The Claimant avers that on the premise of the request by Her Majesty The Queen the Federation Of Malaya’s Constitutional Commission was created comprising of :

i. the Right Honorable Lord Reid, a Lord of Appeal in Ordinary;
ii. Sir Ivor Jennings Master of Trinity Hall, Cambridge;
iii. The Right Honorable Sir William McKell, a former Governor General of Australia;
iv. Mr. B. Malik a former Chief Justice of the Allahabad High Court; and
v. Mr. Justice Abdul Hamid of the West Pakistan High Court.

51. The Claimant avers the appointment of the Constitutional Commission hereinabove referred to was done by the Defendant to facilitate the subsequent granting of the independence.

52. The Claimant further avers that the Constitutional Commission was responsible to make recommendations, suggestions and was entrusted with the responsibility to draft the Federal Constitution for Malaya.

53. The Claimant avers that in the preparation of the recommendations, meetings were held throughout the Federation where various parties and individuals were heard and 131 Memorandums and letters were presented for their careful consideration and evaluation. In addition to the above numerous meetings were also held through out the Federation and oral evidence was also heard.

54. The Claimant avers that at that all material times the Constitutional Commission hereinabove referred to was well aware that Malaya was a cosmopolitan, multiracial and multi religious society consisting of aboriginals, Malays, of Indonesian origin Chinese of China origin and Indians of Indian origin and others.

55. The Claimant avers that after having received the various recommendations and suggestions the Constitutional Commission on 11th February 1957 presented the Commission’s Report to the Defendant’s Government wherein the Defendant consequently advised Her Majesty The Queen and the Highnesses (which report hereinafter referred to as the Reid Commission Report) prepared on the patronage of the Defendant.

56 At least 88 ( two thirds) of the 131 written memorandas submitted to the Reid Commission as evidenced by the declassified documents procured by the Claimant from the Public Records Office, Kew, London, United Kingdom which represented the will and wishes of the then Malayan population were primarily equality, equal rights and equal opportunities etc, for all Malayans irrespective of race or religion as follows: -

2.1 In the grant of state land,
2.2 Admission to public and administrative service;
2.3 To trade and do business, licences, permits etc
2.4 Primary, secondary, skills Training, university and overseas university education.
2.5 No special privileges for the Malays,
2.6 No discrimination of any ethnic community based on race or religion,
2.7 The retention of all their places of worship in particular Hindu temples, crematoriums and burial sites,
2.8 Freedom of religion,
2.9 Malaya is to be a secular state and not an Islamic state,
2.10 Right to mother tongue education in particular Tamil schools to be fully aided,
2.11 Minimum wage for the lowest paid, and
2.12 Equal recognition as sons of soil for all Malayan born.

57 The Reid Commission Report however failed / neglected / omitted to specifically incorporate in particular the aforesaid equality, equal rights, and equal opportunity provisions for all Malaysians irrespective of race or religion and freedom of religion into the Malayan Federal Constitution when Malaya was granted independence on 31.8.1957.

58 The Claimant avers that at the time of preparation of the Reid Commission Report the Indian minority constituted about 12% of the total population approximately 600 000 Indian minority of Indian origin who came to Malaya then principally as indentured labourers. Today the said population has bloomed into approximately 2 million but merely about 8% of the population.

59 The Claimant avers that it was the inherent legal duty and moral responsibility of the Reid Commission to ensure that the rights and interest of all minority races in Malaya then especially that of the Indian minority were well protected and safeguarded. This duty on the part of the Reid Commission was paramount.

58. The Claimant avers that on perusal of the Reid Commission Report the same is absolutely pathetic and disgusting that the said Reid Commission had recklessly failed and grossly neglected to discharge the legal and moral duties entrusted upon them.

59. The Claimant avers that upon receipt of the recommendations by the Reid Commission the Defendant on 31st August 1957 Proclaimed Independence to Malaya what is now known as Malaysia based on the Malayan Federal Constitution as drafted out by the said Reid Commission.

60. The Claimant avers while it was incumbent upon the said Reid Commission to protect and safeguard the rights and interest of all races in Malaya then through systematic effective measures and consultation it is most unfortunate that the Reid Commission Report presented to Her Majesty seriously lacked competence, a profound knowledge of the local situations, the historical aspects and background resulting in severe imbalance and prejudice caused in particular to the said Indian minority of Indian origin.

61. The Claimant avers and vigorously states that by reason of the said Reid Commission’s neglect and irresponsible act it has caused and brought about dire consequence to the Indian minority in Malaysia today. The Claimant further avers that from a careful perusal of the report, salient facts were never taken into account in the compilation of the Federal Constitution . It appears according to the Claimant that these salient facts were deliberately and intentionally ignored and/or omitted by the said Reid Commission and by reason of their failure the Indian minority today in Malaysia has now become the most oppressed and suppressed class of people and in fact have been made to become new underclass, underdogs and under privileged and re colonialised citizens of Malaysia

Some of the salient facts that were never considered and/or ignored by the Reid Commission are as follows:

i. failure to define in unconditional and unequivocal terms the definition of secular state;
ii. failure to define in unconditional and unequivocal terms the Malay special rights, preferences and quotas referred thereto
iii. failure to define in unconditional and unequivocal terms and the maximum time frame for the period for the Malay special rights, preferences and quotas to come to a definitive end ;
iv. failure to define in unconditional and unequivocal terms the freedom of worship and religion and the manner it is to take shape in the multiracial society;
v. neglect and failure to consider the subject of conversion into and out of the Islamic faith in the drafting of the Federal Constitution;
vi. The neglect and failure to consider the election and appointment of a Non-Muslim Chief Minister particularly for the States of Malacca and Penang.
vii. the neglect and failure to consider that there shall be no establishment of Islamic schools and madrasahs in Malaya;
viii. the neglect and failure to consider and protect the participation and employment of Non Malay-Muslims especially Indians in the Malayan civil service;
ix. failure to defend and vigorously advocate the preservation of the minority Indian rights in education, employment, finance, electoral representation and in the private sector;
x. failure to safeguard and protect the rights and interests of minority Indians to take up judicial appointments though the Indian lawyers were known to be about the finest lawyers in Malaya;
xi. failure to safeguard and protect the rights and interest of minority Indians employed in the plantations who were brought into Malaya through the indenture slavery system fashioned and designed by the Defendant;
xii. failure to safeguard and protect the rights and interest of minority Indians in the granting of state land;
xiii. failure to safeguard and protect the rights of the minority Indians in relation to elected parliamentary seats ;
xiv. failure to formulate an effective national integration policy to be implemented soon after independence with the view to strengthen and enhance communal relation ship within the society;
xv. failure to formulate effective economic policies to uplift the socio-economic position of the minority Indians ;
xvi. failure to create a clear provision in the Federal Constitution that any act or conduct done by the Federal or the State Government in contravention of cardinal democratic theories and principles is to be declared unconstitutional;
xvii. Failure to formulate anti racial, discriminatory and anti religious extremists’ provisions to safeguard in particular the Indians .

PARTICULARS OF THE REID COMMISSION’S / DEFENDAN’S NEGLIGENCE / FAILURE / OMISSION IN FORMULATING AND FINALISING THE FEDERAL CONSTITUTION OF MALAYA HAVING REGARD TO THE WISHES OF THE PEOPLE IN PARTICULAR WITH REGARD TO THE PROPOSALS AND SUBMISSIONS TO THE REID COMMISSION:-

a. Formulating and finalizing Article 153 of the Federal Constitution despite the same being in violation of the International Labour Organisation (ILO) provisions on racial discrimination and despite having discussed the same at the 33rd Meeting on 17.9.1956 and at the 45th Meeting of the Reid Commission on 9.10.1956 and the Ceylonese Association having specifically submitted to the Reid Commission that they “feared special position of Malays would become a permanent feature”.

b. Did not tighten Part (2) of Article 153 on Malay Reservations though the Reid Commission Meeting on 9.10.1956 acknowledged that Article 153 was hardly tight enough and that a non discrimination clause might be drafted to which the privileges and advantages accorded to the Malays would be an exception. Though Sir Ivor Jennings undertook to prepare such a draft, the same was never done.

c. Had not defined discrimination in the Federal Constitution though having agreed that the Reid Commission cannot leave it to the Malayan Courts.

d. Drawing up Article 153 which in effect laid the foundation for 50 years of racism, religious extremism and direct discrimination in particular against the Indians.

e. Did not ensure that the Judiciary and in particular the Supreme Court are not packed with Malays despite discussing the same at the 20th Meeting of the Reid Commission on the 24th of August 1956 and did not ensure that the Judiciary is completely independent as per the Malayan Bar Memoranda to the Reid Commission dated 15.9.1956.

f. Did not cap the Malay Special Privileges at 15 years as per the Alliance proposals vide their Memoranda dated 27.9.1956 and as proposed by the Chief Minister and First Prime Minister and the First Deputy Prime Minister which privileges have been stretched to the brim over the last 50 years and is continuing indefinitely and resulting in the Indians being made to be the new underclass.

g Did not specifically spell out that entry into the Malay College Kuala Kangsar and / or any other elite schools, fully residential schools, skills traning institutions, higher education institutions, matriculation colleges, scholarships and loans for overseas training and universities should not be exclusively for the Malays only.

h. Did not formulate provisions to protect and entrench rights of the Indian minorities though discussed about the Protection of the Aboriginal peoples at it’s 42nd Meeting on 5.10.1956.

i. Did not specify that Malaya is to be a Secular State and specifically not an Islamic State.

j. Failed to consider the importance of full religions freedom as provided for by the Universal Declaration of Human Rights 1948 and specifically highlighted by the Malayan Churches Council and at the London Constitutional Conference in 1956.

k. Failure to include provisions that there would be no compulsion to convert a person out of Islam as per the All Malaya Hindu Council memoranda to the Reid Commission dated 5.9.1956.

l. Emergency powers not put to an end so much so that the same and read with the Internal Security Act has been used to enhance Malay Supremacy and Malay dominance, direct discrimination, legitimize apartheid ala Malaysia and the suppression and oppression of the Indians.

m. Failure to formulate enough provisions in the Federal Constitution to safeguard the independence of the Judiciary which would not have upheld racially discriminatory and religious extremist practices and any inequal treatment, inequal opportunities or any inequality for that matter.

n. Did not specify that Tamil schools should not be discriminated and instead education for minority Indians should be fully funded and aided in the same manner and fashion every National school is currently State responsibility.

o. Did not specify Federal Land Development Authority (Felda) Federal Land Reclamation Authority (Felcra) and Rubber Industry Small Holders Development Authority (RISDA) like land schemes which were granted by the state to almost exclusively the Malay Muslims and completely discriminating even the then existing Indian plantation workers who in fact had a more legitimate claim than the Malays by reason of them being the existing plantation community as the Defendants’ still wanted to secure their business interest in the large plantations for example Sime Darby, Guthrie and other British investments.

p. Did not at least retain the 20% Indian intake into public universities as at 1956 as most of the Chinese had the means to private and / or overseas education and the Malays being given preferential treatment by the Defendant’s.

q. Did not devise affirmative action plans for especially the lower middle class and the working class and the hardcore poor Indians as was done for the Malays.

r. Did not specify equal opportunity for all Malayans in the grant of licences, permits, businesses, participation in small and medium scale industries, public and private sector jobs, Judiciary, grant of land schemes etc as specifically highlighted by the Persatuan Melayu Semenanjung to the Reid Commission vide their memoranda dated 5.7.1956.

s. Did not preserve Tamil culture, religion and language despite the same being specifically highlighted by the Malayan born Indian Association to the Reid Commission vide their memoranda dated 12.7.1956.

t. Did not incorporate provisions to give effect to the right to trade without any discrimination as proposed by the Indian Chamber of Commerce to the Reid Commission vide their memoranda dated 10.8.1956

u. Did not secure a minimum monthly wage for the working class.

v. Did not secure that every national school should have a vernacular Tamil teacher as specifically proposed by the Malayan Tamils Assocition vide their memoranda to the Reid Commission dated 6.6.1956.

w.Did not specify that all local born Malayans are sons of the soil and should also be given equal rights and equal opportunity in administrative appointments as specifically proposed by the Malayan Born Indian Association vide their letter dated 12.7.1956 to the Reid Commission.

x.Did not guarantee in the Constitution for the preservation and retention of all Hindu temples, places of worship and crematoriums as specifically proposed by the Penang Hindu Sabha vide their memoranda dated 11.7.1956 to the Reid Commission and for the building of new temples, crematoriums and Tamil schools. in new housing estates and / or townships

y. Did not ensure that the expanses of every religion especially the Islamic religion should not be borne by the Government or the states as proposed by Cik Din vide his letter to the Reid Commission dated 12.7.1956.

z. Did not specify that the Public and Administrative Service should not be the monopoly of the Malay / Muslim race.

za. Allowing average Malays to get scholarships whereas bright Indians cannot continue their studies due to lack of funds.

zb.Did not incorporate into the Federal Constitution that the Malay Muslims too are recent immigrants from Indonesia and the true sons of the Soil are the orang asli as per the Memoranda by Mr.A.Dennison to the Reid Commission dated 30.7.1956. the defendant’s in fact bent backwards to recognize the malay muslims as the native of Malaya.

zc. Failing to ally the fears of the Muslim League Malacca vide their memorands to the Reid Commission dated 2.8.1956 which specifically mentioned that “fear of the majority community to whose tender mercies we are to be handed, would proceed to ignore the other minorities”.

zd. Did not legislate that no citizen shall be denied admission to any educational institution or denied loans or scholarships promotion etc on the grounds of race, religion, language and that the education of all races should be given equal treatment as proposed by the Rubber Trade Association of Selangor vide their memoranda dated 16.4.1956 to the Reid Commission.

ze. Failing to consider that the almost all Malay police force and army would be used as an instrument to protect and preserve the party in power as per the memoranda by the Province Wellesley Labour Party dated 8.8.1956 to the Reid Commission.

zf. Failing to ensure that the civil service, police, the armed services, Judiciary, Attorney General’s Chambers and the media should be politically independent also as per the memoranda by the Province Wellesley Labour Party dated 8.8.1956 to the Reid Commission.

zg.Did not draw out safeguards against monopoly of political and economic benefits by the Malays as specifically mentioned by the Province Wellesley Lobour Party vide their memorandum to the Reid Commission vide their memoranda dated 8.8.1956.

zh.Failure to secure Tamil medium Secondary schools with hostels, instructions in their respective religions and in particular the Hindu religion in schools at public expanse as per the resolution passed at the Agila Malaya Tamilars Sangam and forwarded to the Reid Commission vide their memoranda dated 22.9.1956.

zi. Failure to grant Land settlement schemes for the South Indian labourers as recommended by the former High Commissioner Sir Gerald Templer and the failure to grant adequate financial assistance to be extended to the said settlers from the Indian Migration Fund and as was discussed by the Reid Commission. To the contrary land was granted by the Defendans’ to the minority Indians in Guyana in exchange for not paying repatriating costs back to India before granting Independence to Guyana.

zj. Lord Reid when he welcomed the Alliance delegation displayed bias to the Malay Muslims when he commented that “we are extremely glad to have from a body commanding so much public support and with such a full and helpful memorandum”.

zk.Failure to consider the Alliance proposal to the Reid Commission on 27.5.1956 that the lower house should have 10% appointed Members of Parliament from among the Indians to represent them.



zl.Failure to enact a Nationality Law as proposed by the Alliance Party on 27.9.1956 to the Reid Commission which provides for a common nationality to the exclusion of all others and which would have barred Indonesians from subsequently becoming Malay Muslim Malaysian citizens and further repressing the Indians by the collective Malay majoritarion might.

zm.Failure to secure reservations in trade, finance, business and industries for the Indians as they too had very few licences, permits businesses industries etc like the Malay Muslims as at 1956/1957.

zn.The Reid Commission did not take sufficient care and attention despite Mr A.Dennison highlighting to the Reid Commission vide his memorandum to the Reid Commission dated 30.7.1956 that “the Malays will not accept this (equality) from anybody other than you”.

zo.The Defendants’ gave in to the Malays as a quick fix solution to wash their hands off Malaya after having successfully used the Indians for their financial gains for two hundred years.

zp.Knowing that all indications were the eventual discrimination and marginalization suppression and oppression of Indians, their (Indian) rights were never secured in the Federal Constitution.

zq.Failure to secure and entrench the legitimate rights and interests of the minority Indians.

63. The Claimant avers that by reason of the Commission’s failure and neglect to properly safeguard and protect the rights and interest of the minority Indians they have since 31st August 1957 been neglected, isolated and segregated from the mainstream politics and socio-economics who have today ended up being the new underclass underdogs and under privileged citizens of Malaysia and remain permanently colonialised by the ruling muslim majoritarian Government led by UMNO.

64. The Claimant further avers that these deprivation and steady violation of civil and political rights especially on minority Indians is rampant and continuous causing and giving rise to social and political imbalance and poverty wherein the majority of the minority Indians live below the poverty line without any form of financial support or aid and welfare by the state.

65. The Claimant further avers by reason of the said Reid Commission‘s failure to safeguard and protect the Indian minority rights, the government (Malay majority government) has intentionally and deliberately deceived and manipulated the minority Indians and have taken advantage of all opportunities accorded to them and there exist no provision in the Federal Constitution and nor the same was recommended to nullify such conduct and behaviour.

66. The Claimant avers that the failure of the Defendant to properly safeguard and protect the rights and interests of the minority Indians were so glaring resulting in immense and insurmountable losses.

67. The Claimant avers that his paternal grandfather and hundreds of thousands of other Indians had been personally and directly aggrieved or affected by the conduct of the Defendant and the said Reid Commission acting on the directives of the Defendant.

68. The Claimant further avers that by reason of the Commission’s failure and neglect to properly safeguard and protect the rights and interest of the minority Indians over the last 50 years since independence on the 31st day of August 1957, the United Malays Organisation (UMNO) controlled Malaysian government with their majoritarian might, and backed by police, army, civil service Attorney General’s Chambers, Judiciary, and the media continuously violated the Malaysian Federal Constitution by their racist and Islamic extremist policies and which in effect have created an apartheid system ala Malaysia and especially resulting in the degeneration of majority of the ethnic minority Indians to become the new underclass and re colonialised who ended up in the poor and hardcore poor category. The rest of the community raised above the poor and hardcore poor category wholly and/or substantially through their own efforts and or extra ordinary hard work, sacrifices and labour with no or very little assistance by the UMNO controlled government.



69. The Indians having no or very little opportunities for upward mobility or hope either turn to crime (60% of Malaysian detainees are Indians though they form only 8% of the population- Suhakam 2005) or end up committing suicide which is 1000% higher than Malays (Utusan Malaysia 12.9.2005).

70. Particulars of the violations of the Malaysian Federal Constitution by the Government of Malaysia over the last 50 years since independence on 31.8.1957 are as follows:-

(I) Racism, Islamic extremism and Malay Special privileges stretched to the brim and with no cut off date.

(II) All 523 Tamil Schools in Malaysia have not been made fully aided government schools or equal and same facilities as granted to national schools especially in terms of financial allocations, sufficient graduate teaching staff, financial allocation for extra tuition, ample computers, Information Technology facilities, school fields, sports, recreational facilities, air conditioned library, textbook loans, kindergarden, school uniforms and pocket money for poor pupils, nutritional food programmes, teaching aids, school building, infrastructure, film screening room and facilities, financial assistance for poor students, rehabilitation classes, non Muslim in particular Hindu religious classes, etc.

(III) Especially the poor Indians not granted affirmative action plans, grants, scholarships, loans etc as extended to Malay Muslim citizens with the view to providing equal opportunities for higher education, university education, admission to foreign universities, post graduate studies locally and overseas, Trade and Skills Training Institutions, Science Colleges matriculation colleges especially for each and every Indian student from the poor and hardcore poor Indian category.

(IV) Especially poor Indians not granted affirmative action plans as extended to Malay Muslim citizens with the view to provide equal opportunities in acquiring wealth, venturing into business, trade, industries, small and medium scale industries, government linked companies, corporate sector, procurement of direct government contracts, in acquiring licenses for contractors, blue chip and / or guaranteed return shares, (like ASN & ASB which gives 12% annual returns as opposed to 3.5% bank fixed deposit rates but which is exclusively for Malay Muslims) lorry, taxi and bus permits, loans and licenses to venture into trade, business, banking and the corporate sector for each and every Indian from especially the poor and hardcore poor Indian category.

(V) Indians denied Government top most level postings (Secretaries Generals and Directors Generals), Middle level Management (Directors) and management level (Managers) postings, and with the parallel postings also denied in the Private Sector) and positions of District Officers; Foreign and Diplomatic Service positions, civil service positions.

(VI) No efforts made for the elimination of racial and religious discrimination, oppression and suppression of the Indians / Hindus in both the public and private sectors.

(VII) The indiscriminate unconstitutional and unlawful demolishments of Hindu temples, crematoriums and burial sites in Malaysia. All existing Hindu temples, crematoriums and burial sites not granted state land and state funding and permanently gazetted as Hindu temple crematorium and burial site reserves as has been done for all Malay Islamic places of worship and burial sites.

(VIII) Every individual not given the Right to practice and profess religion/s of his/her choice in accordance to standards adopted by the Universal Declaration of Human Rights 1948. The State is not barred from interfering in the personal beliefs and conscience of individual citizens. Disputes between Muslim & Non Muslim are often being determined in the Malay Muslim Syariah Courts and not the Civil Courts.

(IX) Victimization and direct discrimination by the Police, enforcement and all other state authorities against the Indians.

(X) Malaysians earning RM 3,000.00 and below do not get state funded legal aid for any criminal charges they may face.

(XI) A Royal Commission of Inquiry into the Kg Medan Mini Genocide not held and neither was the violence condemned criminal prosecutions seriously instituted aganist the criminals’, no Inquest held into the death of at least 6 killed or compensation paid for each and every citizen killed, permanently maimed, maimed or injured in this tragedy.

(XII) All homeless Malaysians not provided opportunity to own affordable homes Many are dumped into cramped low cost flats which is now the ghettos. A minimum wage of RM1, 000.00 for each and every Malaysian have not been made law.

(XIII) Indians virtually being made the fouth class citizens after the Malays, Chinese and immigrant Indonesian and other muslims.

(XIV) No Race Relations Act , Equal Opportunities Act and a Freedom of Religion Act with a powerful Commission thereto be put into force to give effect to anti racism, anti Islamic extremism and anti direct discrimination practices by the UMNO controlled government in both the public and private sectors.

(XV) No Independence of the Judiciary, the Attorney General’s Chambers, Civil service, Police Force, Army, the Malaysian Human Rights Commission and the Malaysian media who are unable to act without fear or favour.

(XVI) No Opposition Indians Members of Parliament exclusively elected by the Indian Community to represent their interest at the highest political level and also as a Parliamentary Democracy check and balance and for the protection of the ethnic Indian minority.





Particulars of the Claimants’, his families’ and ancestors hardships having lived in Malaysia over the last 50 years:-

I. Claimant’s parents sold the only house and the proceeds thereof used for the Claimant to successfully persue a degree of his choice in the United Kingdow as the Plaintiff was denied entry into the local Universities though he had all the grades and requirements purely because he was an Indian.

II. Claimant was a devotee of the Sri Siva balamuniswarar Hindu temple in Setapak which was demolished using bulldozers in 2006, the Sri Kumaravel Hindu temple Kg.Medan which has been relocated next to a sewerage tank in 2006, the Muniswarar Hindu temple in Midlands estate was demolished using a sledge hammer in 2006 and the Muniswarar temple in Seremban with a 100 year old raintree has been given notice to be demolished in 2006. The Claimant further avers that in all new townships no new Hindu temples are allowed to be build nor building permission granted and temples wanting to be built on even private land are demolished.

vii. Throughout the history of independent Malaya / Malaysia no new Hindu temples has ever been built from fully funded government funds for building costs and on State / government land.

viii. Claimant’s legal firm Messiers Kumar Hashimah & Co, Advocates and Solicitors, has been removed from the government and government linked companies, bank and corporate panelships for the reason that the Claimant is an Indian.

ix. Hundreds of letters, Memorandum, protest notes by the Plaintiff and / or NGO the Claimant is a member of to the Government of Malaysia over the last 10 years and the last being the letter to the Prime Minister dated 14.8.2007 of Malaysia to reply within seven (7) days and 22.8.2007 has never been replied to or at best replied with a few lines of mere acknowledgement.

xi. The Claimant denied the right to receive instructions in his mother tounge the Tamil language as 327 Tamil Schools have been demolished over the last 50 years. From 850 over Tamil Schools in 1957 the same has been reduced to 523 in 2007. No new Tamil Schools have been built in tandem with the growth of the Indian population.

xii. Hundreds of thousands of Indians lost their lives in the pre independence 1957 years while clearing jungles, building roads bridges etc.

xiii. Hundreds of thousands of the Claimant’s descendents have been denied equal education opportunities, Federal Land Development Authority (Felda) Federal Land Reclamation Authority (Felcra) and Rubber Industry Small Holders Development Authority (RISDA) etc like land schemes.

xiv. All Hindu temples, crematoriums and burial sites are not protected by the Federal Constitution.

xv. Different set of exams for STPM (A Levels) for Indians as opposed to the Malay Muslims who mostly sit for the supposedly STPM equivalent matriculation exams.

xvi. From 1957 to 2007 thousands of Hindu temples in Malaysia have been demolished by the Malaysian authorities.

xvii. By reason of the Defendant’s negligence the Malayan / Malaysian government took advantage of the Indians in Malaysia

67. Wherefore the Claimant prays for the following Orders from this Honourable Court :

a. a Declaration that the Defendant was principally and primarily responsible for the indiscriminate exportation of human manpower from India then into Malaya during the period of colonization which behavior and conduct of the Defendant is illegal, unconstitutional and seriously violated and mutilated basic human rights;
b. a Declaration that the Reid Commission Report dated 11th Feb 1957 and the Malaysian Federal Constitution prepared on the instructions and Orders of the Defendant shall hereby be declared null and void;
c. a Declaration that the Reid Commission Report dated 11th February 1957 was incomplete, incomprehensibly failed to incorporate and entrench in particular the Indian rights, failed to observe strictly international Legislations and Conventions in the finalized Federal Constitution of Malaya on which basis Malaya was made independent by the Defendant on 31.8.1957.
d. a Declaration that there has been a gross violation, segregation, discrimination, marginalization and apartheid practiced on Malaysians of Indian origin;
e. A declaration that Article 153 of the Federal Constitution which provides for Malay Special privileges is in contravention of the Universal Declaration of Human Rights and the International Labour Organisation legislation with regards to racial discrimination.
f. a Declaration that over the last 50 years with effect from 31st August 1957 and based on the Malaysian Federal Constitution the Indian minorities have been marginalized, discriminated, oppressed and suppressed to end up becoming the new underclass and permanently re colonialised society of Malaysia;
g. A declaration that there has been a gross violation, segregation, discrimination and apartheid ala Malaysia practiced on Malaysians of Indian origin;
h. Damages in the sum of Pound Sterling one (1) Million for the pain, suffering, humiliation , discrimination and continous colonialisation suffered by each and every Indian and their ancestors in Malaya be awarded to each and every living Malaysian of Indian origin;
i. An Order that each and every Malaysian citizen be given the option to be granted British citizenship as of right so as to be given an opportunity escape any future discrimination, marginalization, oppression and
suppression by the Government of Malaysia;
j. Damages to be assessed for the oppression, suppression, discrimination, loss of dignity, demolishment of Hindu temples burial sites, crematoriuos, tamil schools, inequal opportunities and direct discrimination suffered by the two (2) million Indians in Malaysia and their ancestors for almost 200 years which is to be utlised for the upliftment and welfare of the Malaysian Indians and is to be deposited within 14 days from the date of pronouncement of the judgment herein and to be administered jointly by the Claimant and his six (6) proposed trustees and the British High Commissioner to Kuala Lumpur Malaysia giving effect to all the decisions of the claimant and his nominees;
k. aggravated and exemplary damages to be assessed and paid by the Defendant within 14 days of final assessment to the Trustees to facilitate distribution;
l. An Order that the Defendant within sixty (60) days from the date hereof moves the European Community (EU) and the United Nations (UN) to establish an EU and UN fact finding mission to Malaysia to establish the facts hereinbove mentioned in recommendations to protect the future of the said Indians in Malaysia;
m. An order that the Defendant lodges an official complaint with the International Criminal Court with the view to refer Malaysia to the International Criminal Court in Strasbourg for the mini genocide to the Indians in the Kg.Medan racial attacks, demolishments of Hindu temples in Malaysia, police shooting to death and the killing of suspected Indians while in police custody;
n. An Order that the Defendant lodge an official complaint with the view to refer Malaysia to the International Court of Justice for the Human rights violations against the Indians in Malaysia over the last 50 years and continuing;
o. And any other relief or Order deemed fit and proper to be granted by this Honourable Court.A