Abdul Malik Ishak JCA:

The Background Facts

[1] Cessation of armed activities between the Government of Malaysia and the Communist Party of Malaya was a welcome news for all Malaysians. It became a reality on 2 December 1989. On that date, an agreement was entered between the Government of Malaysia (the fourth respondent/defendant) and the Communist Party of Malaya (the second appellant/applicant) to terminate armed hostilities between the parties (hereinafter referred to as the "agreement"). With the signing of the agreement, armed hostilities between the parties ended and peace prevailed. The terms of the agreement can be seen at p. 235 of the appeal record at Jilid 1 (hereinafter referred to as "ARJ1"). There were four articles to that agreement and the relevant ones read as follows:

Article 3 - Residence In Malaysia

3.1 Members of the Communist Party of Malaya and members of its disbanded armed units, who are of Malaysian origin and who wish to settle down in Malaysia, shall be allowed to do so in accordance with the laws of Malaysia.

3.2 Members of the Communist Party of Malaya and members of its disbanded armed units, who are not of Malaysian origin, may be allowed to settle down in MALAYSIA in accordance with the laws of MALAYSIA, if they so desire.

[2] The agreement was executed on behalf of the Malaysian Government by its representatives, namely, the first respondent/defendant (Menteri Hal Ehwal Dalam Negeri, Malaysia), the second respondent/defendant (Ketua Polis Negara Malaysia), and the third respondent/defendant (Ketua Angkatan Tentera Malaysia). The first appellant/applicant by the name of Ong Boon Hua @ Chin Peng (popularly known as "Chin Peng" and will be referred to as such hereinafter), was the secretary-general of the Communist Party of Malaya (the second appellant/applicant), and together with two others, namely, Abdullah C.D. and Rashid Maidin signed the agreement on behalf of the Communist Party of Malaya (the second appellant/applicant).

[3] Again, on 2 December 1989, the parties to the agreement also agreed to sign an administrative arrangement which set out in detail the substance of what had been agreed between the parties in the agreement. And the same representatives who signed the agreement also signed the administrative arrangement. There were several provisions in the administrative arrangement (see pp. 236 to 245 of "ARJ1") and the relevant provisions read as follows:

Item 5 - Residence In Malaysia

5.2 Members of the CPM and members of its disbanded armed units, who are not of Malaysian origin, may be allowed to take up residence in MALAYSIA, if they so desire, after having stayed in the pre-designated places in THAILAND for a minimum period of six months.

5.5 Those who wish to settle down in MALAYSIA shall be categorised as follows:

5.5.1 Malaysian citizens,

5.5.2 Non-citizen spouses and children of Malaysian citizens, and

5.5.3 Aliens.

5.7 Non-citizen spouses and children of those who are of Malaysian origin may be allowed to settle down in MALAYSIA in accordance with the laws of MALAYSIA if they so desire.

6.3 Citizenship And NRICs

6.3.1 Those who were in possession of Blue and Red NRICs and citizenship certificates before they joined the CPM or its armed units shall continue to use them as valid documents. Any such documents which have been lost or damaged shall be replaced expeditiously after verification.

6.3.2 Non-citizen spouses and children of those of Malaysian origin who have settled down in MALAYSIA shall be issued with RED NRICs. They can apply for citizenship after two years of continuous stay in MALAYSIA in accordance with the laws of MALAYSIA.

6.3.3 Those who are aliens and those whose citizenship have been revoked shall be issued with RED NRICs should they be allowed to settle down in MALAYSIA. They can subsequently apply for citizenship in accordance with the laws of MALAYSIA.

6.3.4 Those who are of Malaysian origin and who joined the CPM and its armed units before the