Landmark decision due tomorrow in Hindraf’s lawsuit

The potential of it creating a legal revolution is itself a great success, says Waythamoorthy.

KUALA LUMPUR: Tomorrow, April 1, the London High Court will decide whether or not to strike out an unprecedented class action lawsuit commenced by a group of descendants of indentured labourers of Indian origin led by the Hindu Action Rights Force (HINDRAF) against the Government of the United Kingdom.

The claimants, led by Hindraf Chairman P Waythamoorthy, claim that the indentured labourers brought by the British to Malaya during colonial rule were British citizens to whom the UK Government owed a duty of care.

It alleges that the Government was negligent in failing to make sufficient provision for their well-being, resulting in their descendants, the Indian community in Malaysia, remaining a “permanently colonized community”.

The Crown has applied to have the case struck out or alternatively to have summary judgment entered in its favour.

Acting for the Crown, Martin Chamberlain, QC admitted that the claim was novel, “involving the complexity in sequential action by the Crown leading to the drawing up of the constitution.”

He also agreed that, if allowed to continue, the case would create a legal revolution by expanding the Crown’s duty of care in common law.

He, however, argued that there could be no such duty owed because in formulating the Malayan Constitution, the Queen was not acting on behalf of the Indian community but purely in the exercise of her statutory duties.

Represented by Joel Bennathan, QC, Hindraf argued that neither novelty nor the potential to expand the law constituted sufficient basis to strike out the claim without the matter going to trial. He said that the common law ought to develop as community evolves.

Submitting volumes of declassified documents to show the existence of a duty of care by the British Government towards Malayan Indians in 1957, he argued that Britain could not avoid liability towards the hundreds of thousands of people whom they shipped to Malaya.

He contended the breach of duty resulted in the entrenchment of an apartheid kind of law in the Malayan Constitution which amounted to a violation of human rights, and left more than 800,000 Indians displaced and another 300,000 stateless.

The breach of duty was also reflected in disproportionate efforts expended in seeking to safeguard British commercial and military interests at the expense of the rights of the claimants’ ethnic group, he added.

Anticipating that the decision may not be favourable, Waythamoorthy said in a statement today, “From the beginning of this case we have always said that we can never guarantee any success but we would seek justice for our forefathers in the British court by holding them liable for their negligence.”

“As an Indian of Malaysian origin I am proud to say the fact that this case is recognized as a novel action and the potential of it creating a legal revolution in the history of the British legal system itself is a great success,” he added.

The case is being heard before Judge Nicholas Blake, QC.