"Pendatang" : Jus Soli vs Jus Sanguinis

MALAYSIAKINI - 'Jus soli' vs 'jus sanguinis'
Muhammad Faisal bin Abdul Aziz | Sep 9, 08 4:30pm

I am not particularly interested in the recent development of political scene. The controversial and offensive remarks issued by Bukit Bendera Umno Chief Division Dato Ahmad Ismail still being highlighted by media constantly without presenting any efforts to find amicable solutions to this racial dissent.

Worse still, many Chinese leaders keep urging Ahmad himself to make a public apology regarding to the remark. According to them Dato Ahmad Ismail alone should take responsibility for his action. Not long after, it was followed by a very fresh incident caused by UMNO as responding to the apology demand.

Media had reported the harsh feedback had been made by UMNO by pulling down the photo of ex-CM Dr Koh Tsu Koon from the wall of UMNO HQ and tearing it into half. Eventually, the feedback have led to the immediate decision of Penang Gerakan to severe ties with UMNO in the island state.

Rationally, should we agree that this 37% of Malaysian population is made up of "Pendatang"?

I divided the issue into historical and current perspective. In historical perspective for sure I will be in line with him. Historical facts had clearly shown the migration of Chinese to Tanah Melayu. Even, before Merdeka, Malay leaders had compromised a lot to accept them which previously called as immigrant to participate as Malaya citizen by adopting "jus soli" principle. Meanwhile, in the same time, they were willing to share the nations together by neglecting the doctrine of "jus sanguinis" even though it was the common practice of all newly independent states in the world around 1940s and 1950s and acknowledged by International law.


Jus soli defined by Oxford Dictionary of Law as the rule by which birth in a state is sufficient to confer nationality, irrespective of the nationality of one’s parents. In a simple word, the doctrine is accepting all those who were born in state as citizen without concerning their ascendant. Ironically, jus sanguinis is defined as the principle that the nationality of children is the same as that of their parents, irrespective of their place of birth. In other word, it is regarding all descendant of immigrant as non citizen despite they were born in the state. The later was bringing the effect of repatriation process to all "pendatang". Uganda for instance, before gaining independence had stipulated 3 months to all immigrant whether to return to their original country or assimilate with the local customs and influences. Again, Malaya is the only one country in the world departed from this international law principle without any elements of coercion or undue influence by British.

But, by looking at the current perspective the historical argument seems to be fragile. Now we are living in more than 50 years age of Malaysia and the principle of equal citizenship prevail. Thus, no doubts that all Malaysians should be treated as citizen. Nevertheless by hook or by crook, the history part should be kept continuously by all quarters particularly in maintaining the prosperous life of Malaysia.

I opined that the major concern is not about "pendatang" and apology, but the conflict of interests between Malays and Chinese. Both claimed of their authentic rights in many fields had been seized and marginalized. So, this "racial impasse" had to be solved at first. Most of them respectively believing of living in unfair society due to poverty or financial problems faced. My suggestion is, we must look forward for the betterment of Malay and Chinese in making concrete decision. The essence of good governance that is policy of equality should be upheld in helping those who suffered and live in a miserable condition.

Hence, we must have a new language of discourse by looking the problems as collective responsibility. Now it is irrelevant to confine the problem to one particular ethnic group by labelling it as Malay or Chinese problem but the perspective must be shifted to people problem. We must speak up and act on behalf of Malay, Chinese, and Indian heartland.

Meanwhile, whichever way you look at it, the nation policy upheld must be in a position of respecting history without putting aside the contributions of our forefathers particularly in drafting "Social Contract" which later embedded in Article 153 of Federal Constitution.

Accepting the doctrine of jus soli is a price to be paid by Malay leaders in order to get privileges acknowledged in Social Contract or Article 153 of Federal Constitution. If we are not respecting the element of "Social Contract" or Article 153 of Federal Constitution, this kind of "hot button issue" will reach the deadlock forever. So why should this kind of respect be so difficult for us?





Saturday 6 September 2008
1.07 p.m.