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Citizenship: its acquisition

Mohd Badrol Afandi, Nor Hafizah and Ali Mohamed, Ashgar Ali and Masum, Ahmad and Ahmad, Muhamad Hassan (2022) Citizenship: its acquisition. In: Constitutional Law in Malaysia. LexisNexis Malaysia Sdn Bhd, Bangsar South City, Kuala Lumpur, pp. 351-399. ISBN 9789672701637

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The subject of citizenship is dedicated in Part III of the Federal Constitution which comprising of three Chapters. Chapter 1 which is from Articles 14 to 22 of the Federal Constitution deals with acquisition of citizenship, while Chapter 2, from Articles 23 to 28, deals with termination of citizenship by renunciation or deprivation and lastly, Chapter 3 contains supplemental provisions. Basically, a person may acquire citizenship by the following four ways namely, (a) operation of law (article 14); (b) registration (articles 15, 15A, 16, 16A and 18); (c) naturalisation (article 19); or (d) incorporation of territory (article 22). The above articles in Part III must be read together with the First and the Second Schedules of the Federal Constitution. The First Schedule contains the oath to be taken for citizenship by registration or naturalisation, while the Second Schedule which consists of three Parts; Part I deals with citizenship by operation of law of persons born before Malaysia Day; Parts II and III contains the detailed provisions on citizenship by operation of law of persons born on or after Malaysia Day and the supplementary provisions, respectively. Citizenship is granted to an individual by meeting the legal requirements set out in the above provisions of the Federal Constitution. Among the four methods of acquiring citizenship, citizenship by operation of law is acquired automatically at birth, either within or outside Malaysia, subject to certain qualifications as specified in the Second Schedule. It is acquired without requiring any application made to the authority or the requirement of oath. Further, it did not require any exercise of discretion in the matter by the government. In fact, the granting of it is a matter of birth right, where at birth, the person’s citizenship was determined. A person born in Malaysia or outside of Malaysia to Malaysian parents is entitled to citizenship by operation of law. Basically, if he is born in Malaysia and any one of his parents is Malaysian citizen, the child is also deemed a citizen. However, if the birth of the person is outside Malaysia, he would not be entitled to citizenship under the operation of law if at the time of the birth the child’s father was not a citizen of the Federation. Again, a child of foreign parents who are not Malaysian who gives birth in Malaysia does not acquire citizenship by operation of law. While the citizenship by registration and naturalisation requires an application to be made to the Federal Government upon certain conditions being fulfilled. Lastly, citizenship by incorporation of territory, it is for the Parliament to determine by law determines what persons are to be citizens by reason of their connection with that territory and the date or dates from which such persons are to be citizens. Being a citizen, the person is granted certain rights and privileges which may include amongst others the rights to vote, to hold public office, to social security, health services, public education, permanent residency, to own land, or to engage in employment, among others. In CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] MLJU 887, it was noted inter alia, that ‘citizenship comprises a fundamental aspect of nationhood. There are numerous rights attached to the notion of citizenship, foremost of which include the right to vote, rights available to citizens only under the Federal Constitution such as those guaranteed under Articles 9 and 10, and an identity and diplomatic protection by the home-State in foreign territory.’ Article 9(1) states that ‘No citizen shall be banished or excluded from the Federation’; Article 123 provides that ‘A person is qualified for appointment under Article 122B as a judge of the Federal Court, as a judge of the Court of Appeal or as a judge of any of the High Courts if - (a) he is a citizen’; Article 43(7) states that ‘a person who is a citizen by naturalization or by registration shall not be appointed Prime Minister’; and Section 7 (1) (a), Immigration Act 1959/63 (Revised - 1975) states that ‘A citizen shall be entitled to enter Malaysia without having to obtain a Permit or Pass in that behalf under this Act.’ There is no doubt that citizenship is also a fundamental human right guaranteed by Article 15 of the Universal Declaration of Human Rights. The above article provides that “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. In return, citizens are expected to obey the laws of the country besides, defending the country against its enemies. In light of the above, this chapter discusses the various modes of acquisition of citizenship as well as its requirements and with reference to decided cases. At this juncture, it is also worthwhile to note that a permanent resident refers to a person who has been granted the right to live in a particular country for an indefinite period while he continues to remain a citizen of another country. The term ‘permanent resident’ is defined in section 3 of the Courts of Judicature Act 1964 as ‘a person who has permission granted without limit of time under any federal law to reside in Malaysia, and includes a person treated as such under any written law relating to immigration’. The above section describes the conditions recognised by the law before a person is regarded as a permanent resident. Being a permanent resident, he or she does not enjoy certain privileges or benefits as are accorded to a citizen. A permanent resident is not qualified to be appointed either as a member of Senate or member of House of Representatives, they have no right to cast vote during the general election, or for the appointment as judge of the superior courts, among others. Aside from the above, a permanent resident has every other right similar to a citizen and this includes the right to employment. It is also noteworthy that a permanent resident in Malaysia holds a ‘red’ identity card.

Item Type: Book Chapter
Uncontrolled Keywords: Federal Constitution, Citizenship, Acquisition.
Subjects: K Law > K3165 Constitutional Law
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button): Ahmad Ibrahim Kulliyyah of Laws
Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User: Dr. Muhamad Hassan Ahmad
Date Deposited: 13 Mar 2023 14:38
Last Modified: 13 Mar 2023 14:38
URI: http://irep.iium.edu.my/id/eprint/103969

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