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History
A People's Constitution Proposals by the AMCJA-PUTERA - part 4 |
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In this series we publish the People's Constitutional Proposals proposed by the AMCJA-PUTERA in 1947. The Introduction (in Issue 42) is a valuable historical document which tells of how the UMNO came to be formed and its subsequent break-up, leaving a rump organisation which the British chose to talk to. In Part 2 of the Proposals critically examines the British plans. This instalment sets out the Proposals on citizenship. THE PEOPLE'S CONSTITUTIONAL PROPOSALS FOR MALAYA, 1947 Drafted by Representatives of the PUSAT TENAGA RA'AYAT or PUTERA, and the ALL-MALAYA COUNCIL OF JOINT ACTION between the months of May and August,1947, and approved by two Conferences of Delegates from the PUTERA and the ALL-MALAYA COUNCIL OF JOINT ACTI0N on July 4–7, and on August 10,1947, together with a full exposition, and an analysis of the Government's Constitutional proposals. **************** CITIZENSHIP. SECTION 3: - The following shall obtain citizenship by operation of law, i.e. automatically: (1) All persons born in Malaya. Provided that this sub-section shall not come into operation until six months from the date of the commencement of the operation of this Constitution, during which period any person born in Malaya may, having attained, or on attaining to the age of 18, make a sworn declaration before a magistrate that: (a) he does not desire to accept citizenship, and he shall not .thereafter acquire such citizenship by virtue of the commencement of the operation of this sub-section, or that . (b) he does desire to accept such citizenship, and he shall thereupon become a citizen, |
| And provided that any person born
in Malaya whose father was not at the .time of has birth a citizen,
may, within one year of attaining to . the age of 18, make a sworn
declaration before a magistrate that he does not desire to retain citizenship
and shall thereupon cease to be a citizen, And provided that, if. any person who acquires citizenship by virtue of the operation of. this sub-section, and who shall not have been in Malaya for the whole of the1 above-named period of six months, does not, within six months after his return, make a statutory declaration to the effect that he desires to retain his citizenship, and (deliver such declaration to the Minister, for Home Affairs, he shall cease to be a citizen, And provided that any person under the age of 17 years and six months at the date of the commencement of the operation of this Constitution shall automatically acquire citizenship on such date. (2) Any person born outside Malaya whose lather was, at the time of his birth, a citizen, and: (a) whose father was born in Malaya, or (b) whose father had become a citizen by naturalisation, or (c) who was registered as a citizen at the office of the Minister for Home Affairs within one year of his birth by delivery to such office of a declaration signed by the father and attested by two responsible persons setting out the place and date of birth, place and date of marriage, the name and sex of the child, and declaring that the father wishes his child to be registered as a citizen. (3) Any woman whose husband is a citizen. We have provided in general terms in Sub-Section (1) that all persons born in Malaya shall become citizens. This follows the generally accepted practice of nationality laws. Such nationality laws have, however, grown up in other countries over a long period, whereas this Constitution introduces for the first time provisions tor the creation of a national status for Malaya based on allegiance. In view of the special circumstances of Malaya, and in order that the legitimate claim of the Federal Government for allegiance shall not be open to question, we have provided that all who acquire citizenship automatically under this Constitution, should have the opportunity to refuse this citizenship, if they so desire. This we have provided for by suspending the operation of this sub-Section for a period of six months. This period would provide an opportunity for reflection and consideration of all the implications of citizenship, namely: |
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that it.confers a full national status, and therefore excludes the retention
of any other nationality; (b) that this national status is to be termed "Melayu"; (c) that it connotes full allegiance, and therefore the renunciation of all other allegiances; I (d) that this allegiance connotes duties, in particular the duty to defend the country in the event of attack by any other country. We feel that we should make special reference to our proposal that the national status of citizens should be termed " Melayu." The Malay delegates at our first Conference emphasised that the term " Malayan " to designate the national status was completely unacceptable to the Malays, They felt that the term "Malayan" had always been used in contradistinction to the word "Malay" to denote the non-indigenous inhabitants of the country, and that the Malays had tlierefore become accustomed to regarding themselves as excluded from the category of "Malayans." The use of the term "Malayan" to designate the common national status would therefore involve the abandonment by the Malays, as the indigenous people of the country, of their proper title, and the acceptance by them of a title which, in its accepted sense, included many who did not regard Malay as their real home and as the object of their loyalty. Our Conference realised moreover that, just as the Malays had become accustomed to tlie distinction between "Malays " and "Malayans," so also had many non-Malays who nevertheless regarded Malaya as their real home, and that therefore such people might find some difficulty in accepting the designation " Melayu." Our Conference felt that, since the new national status would require a name, it was inevitable, as between the Malays and the non-Malays, that one of these two groups would have to accept a designation to which it was unaccustomed, and which it might therefore find a preliminary difficulty in accepting. Our Conference unanimously agreed that it was only just and proper that the new national status should be designated by the historic name of the indigenous people, and that the acceptance of the new designation should.therefore fall on those of the non-indigenous people who, regarding Malaya as their real home and as the object of their loyalty, accepted citizenship, leaving intact to the indigenous people their historic name. Our Conference unanimously accepted the term "Melayu" in preference to the term "Malay" in view of the fact that the historic name of the indigenous people is "Melayu" and not "Malay" which is merely the anglicised version of the term "Melayu". Those who, as a result of such reflection and consideration, come to the conclusion that they are not prepared to accept this citizenship and new national status, are given ample time and simple facilities to declare that they do not wish to accept it. Those who, at the end of the six-month period, have not made use of the facilities to reject citizenship will therefore not be able to complain that they have had citizenship thrust upon them, and the |
| allegiance which any national government
must require of its citizens may then, with full justice, be demanded
of them. We have also thought it proper that those who wish to affirm their loyalty to .Mjalaya by a positive act of acceptance, may do so in the same simple manner. It should be noted that the age of majority adopted by us is 18 years. This is in conformiity with the practice of modern democratic constitutions. In order to make perfectly clear the provisions of this sub-section, we offer the following examples of the courses open to those born in Malaya: - 1. "A" is over the age of 18 at the date of the commencement of the operation of the Constitution (this date is referred to below as "the date of the Constitution"). "A" can, during the six-month period following, make a declaration either accepting or rejecting citizenship. If he does nothing, he. will, at the end of that period, automatically become a citizen, but will always be able to make a declaration of alienage under Section 5(2)(d). 2. "B" is over the age of 17 1/2 but under the age of 18 at the date of the Constitution. "B" can make a declaration either accepting or rejecting citizenship. If he does nothing, he may at the end of that period, divest himself of citizenship by making a declaration under the second Proviso before his 19th birthday. At any time after that, however, he can divest himself of citizenship by making a declaration of alienage under Section 5(2)(d). 3. "C" is under the age of 17 1/2 on the date of the constitution. He becomes a citizen at once, since lie would in any case be unable to perforn any valid act of acceptance or rejection before the expiry of the 6-month period. He can, however, renounce his citizenship between his 18th and 19th birthdays under the second Proviso, and can also, at any time after that, make a declaration of alienage under Section 5(2)(d). 4. "D" is outside Malaya on the date of the Constitution. If he doe not return before the end of the 6-month period, or, having returned within that period, does not make a declaration of rejection in time to avoid automatic acquisition of citizenship, he will lose citizenship automatically unless he expressly confirms his citizenship within 6 months after his return. If "D" is over the age of 18 1/2 when he returns, he will have 6 months in which to confirm citizenship. If he is under the age of 18 1/2 when 1 returns, he may, at any time after his 18th birthday, and before his 19th confirm his citizenship. He will, in any case, however,'be able, at any time, to make a declaratic of alienage under Section 5(2)(d) after his 18th birthday. 5. "E" is born after the date of the Constitution. If his father had become, before his birth, a citizen of Malaya, he would, of course, have rights of renunciation under this Constitution. |
| If his father was not, at the time
of his birth, a citizen, he would have the. right of renunciation under
the second Proviso between his 18th and 19th birthdays, and would also
be able to make a declaration of alienage after 18th birthday under Section
5(2)(d). __________ The Working Committee professed to be guided by the principle that "citizenship" should only be extended to those who "regard Malaya as their real home and as the object of their loyalty" (Working Committee Report, paragraph 80,page 21) They stressed (in our view, correctly) that this principle should be strictly interpreted. They felt that this principle required qualifications for citizenship which would satisfy two conditions, namely, that those who acquired citizenship should regard Malaya: (a) as their real home, and (b) as the object of their loyalty. The qualifications for citizenship which the Working Committee thereupon proceeded to draw up, do not, however, in our opinion, serve to test either of these two conditions. Long and continuous residence is the essential feature of their qualifications. Such residence does not, in our opinion, provide any proper test that Malaya is regarded as the real home. Such residence is the result of an opinion formed by the individual that residence in Malaya is, in general, to his best advantage. This opinion is, in every ordinary case, based almost entirely on economic considerations. The essential feature, therefore, of this motive for long residence is that it is a self-regarding motive, pure and simple, and connotes no regard for, or interest in, the welfare of the people as a whole whatever. It is, moreover, a motive which ceases to have the effect of providing a reason for continued residence as soon as the economic attractions, on balance, cease. Such residence is in no way inconsistent with a sentiment of attachment to some other country as the "real home," and with the feeling therefore, that Malaya is merely, at best, a "second home." The vast majority of Europeans, for instance, resident in Malaya, even for 15 years and longer, do not regard Malaya as their real home, but only use their place of residence during their working years, or until they have amassed a sufficient fortune to retire and " go Home." The condition of long residence does no more than ensure that the citizens in question have, during that time, on the whole preferred to live in Malaya rather than elsewhere. |
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Such a preference is, however, a very different matter from regarding
Malaya as a "real home." The validity of .this objection to the long-residence qualification as a test of whether Malaya is made the real home has been admitted, by implication, by Sir Edward Gent, Governor of the Malayan Union. In answer to the .statement of an Advisory Councilor, Mr. Ee Yew Kim, in the Malayan Union Advisory Council on the 25th August 1947, that he failed to see what sane objection there could be to persons deciding to retire from Malaya, after spending the best years of their lives here, to spend the evening of their lives elsewhere, Sir Edward Gent replied "Neither can I see any sane objection to his doing so, but such a decision does not support the view that their real homes were in Malaya." We entirely concur with Sir Edward's view on this point, but would point out that the long residence qualifications of the Working Committee do not serve to test this aspect of future intentions, but only that of past preference: To regard a country as a real home implies a considerable sentiment of attachment, involving a recognition of the essential identity of interest of the individual with the rest of the population, a consequent regard for the welfare of the people as a whole, which is synonymous with the sentiment of loyalty, a consequent acknowledgment of the duties to the people as a whole (that is, to the government) which comprise the general duty of allegiance, and lastly, an " animus manendi," a desire to remain permanently in the country. This "artimus manendi" is not the mere intention to remain in the country until economic circumstances permit departure to some other country in which the individual would actually prefer to live, but means the intention to reside until death. This latter intention may be defeated, as, for instance, by ill-health necessitating a departiire to Switzerland, but that would not affect the real intention of the individual to reside, if possible, in Malaya, and is to be distinguished from the type of'.intention referred to by Mr. Ee Yew Kim, which implies residence in Malaya only until, if possible, arrangements can be made to depart from Malaya. The country in which a man would prefer to lay his bones, and which he is prepared to defend, is his real home. Long residence has, however, in itself, no implications as to future intentions. Substantially, long residence proves long residence and nothing else which has any relevance in the present context. The economic attractions which have motivated the long residence may cease at any time, relative to other countries, and the reactions to such a cessation of those who, although resident for many years in this country during its economic attractiveness, and although their fathers and grandfathers may have resided here for the same economic reasons, have not made Malaya their teal home, will soon be made apparent by their speedy departure. The emigration of Chinese from Dutch territory on the introduction of income-tax in those territories is an example of the reaction of persons who, though they themselves, and eyen their fathers and grandfathers, may have resided in any given territory for years, |
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only residing there for purely economic reasons, and have no loyalty
whatsoever to those countries. The long residence qualification could be stretched from 15 years to 50 years without altering its ineffectiveness to test whether-the country is made the real home or not. The residence qualifications required by the .naturalisation laws of sovereign states is hi quite a different category, since it precedes the performance of a positive, act - the taking of an oath of allegiance. The man who lives in Malaya for 60 years, and feels throughout that time that he would live elsewhere, if only he could afford it, and whose last wish it is, on his death-bed, that his remains should be removed from Malaya., to be buried elsewhere, can hardly he said to make Malaya his " real home." Yet such persons would, by .the Working Committee's Proposals, be accepted with open arms as persons who had proved that Malaya was their " real home and the object of their loyalty." In our opinion, the Working Committee were incorrect in dividing the Under-Secretary of State's principle into two separate parts. It was not by chance, however, that they did so, since they were forced to do so by their "explanation" of the meaning of citizenship. By divorcing citizenship, in effect, from loyalty, it is obvious that there could be no question of even attempting to test loyalty. In order, however, to lull the justifiable suspicions of the Malays, who very naturally would regard the creation of a citizenship divorced from loyalty with great alarm, the Working Committee were forced to go through the motions of testing something, so that the people of Malaya, and particularly the Malays, might be hoodwinked into believing that they were satisfying the requirements of the Under-Secretary of State's principle. This principle cannot, however, be dissected in this way. The key words in the principle - "real home" and "loyalty" - are not separate and distinct, but are inseparably bound together in meaning. As we have shown under Section 2 of our Proposals, loyalty cannot be adequately defined in its constitutional sense without reference to the fact that-the object of the loyalty is the country which is regarded as the real home. In other words, there is one, and only one, test of whether Malaya w regarded as the real home, and that is the test of whether Malaya is regarded as the object of loyalty. And there can be one, and only one, test of loyalty - the free and willing acceptance of an allegiance connoting full national status, and connoting the duty to defend the country against all other countries, if necessary. That is the acid test - to say, in effect, to the potential citizen of, for example, Chinese race: "Are you prepared, if called upon to do so, to fight in the defence of Malaya against China? |
| That, we claim, is
the test provided by our Proposals. The Working Committee, by concocting a so-called "citizenship" that is without meaning or substance, precluded themselves from providing qualifications with any meaning or substance. The necessity to formulate the real test which is implicit in the Under-Secretary's principle, in terms of an allegiance, the essential feature of which1 is the duty to defend the country in time of war, is the result of the fact that loyalty has its greatest significance in time of war. Just as the duties which arise out of a relationship of loyalty between friends become especially significant when one of those friends is in trouble, to the implications of allegiance and loyalty become especially significant in time of war. The duty to fight, and, if necessary, die in the defence of the country will only be willingly undertaken if the country is regarded as the real home: and as the object of loyalty. Our Proposals, we feel, meet the requirements of the Under-Secretary's' principle in the only proper manner by demanding allegiance, and accepting into citizenship only those who have, expressly or bv clear implication, shown their willingness to give this allegiance. Only such persons can be said, we feel, to regard Malaya as their real home and as the. object of their loyalty, since it is, in our opinion, inevitable that those who are, in this way, faced with the free choice between one allegiance and another, between one nationality and another, will choose that allegiance and that nationality which derives from the country which they regard as their real home and as the object of their loyalty. Sub-Section (2) follows closely the principle of the British Nationality and Status of Aliens Act 1914. This principle is based on the desirability of excluding from the automatic acquisition of citizenship, the second and subsequent generations born outside the country. In this way, only those born in Malaya, or who have proclaimed their loyalty by a positive act of naturalisation, can pass on citizenship to their off-spring horn outside Malaya, without the performance of a positive act; which serves to re-affirm loyalty to Malaya on the part of the father. Sub-Section (3) is merely the formal expression of the commonly accepted principle that a woman follows the nationality of her husband.# (to be continued) For Part 3 Go to the top |
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