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Article 24 of the Federal Constitution of Malaysia("Constitution") states that any citizen who has acquiredcitizenship of another country may be deprived of Malaysiancitizenship. This is perhaps the reason for the generalunderstanding that Malaysians are not allowed to have dualcitizenship. But what happens then to individuals who obtainforeign citizenship in addition to their Malaysian citizenship?This article addresses several frequently asked questions on dualcitizenship and the deprivation of citizenship within the contextof Article 24 of the Constitution.
1. Who has the power to deprive me of my citizenship?
The power to deprive a citizen of citizenship lies with theFederal Government. The power does not lie with government agenciessuch as the National Registration Department or ImmigrationDepartment. Under Article 24 of the Constitution, the Governmenthas the discretion to deprive a person of his citizenship if theGovernment is satisfied that the individual has voluntarilyacquired citizenship of any country outside Malaysia.
Article 24 of the Constitution
Deprivation of citizenship on acquisition or exercise of foreigncitizenship
(1) If the Federal Government is satisfied that any citizen hasacquired by registration, naturalization or other voluntary andformal act (other than marriage) the citizenship of any countryoutside the Federation, the Federal Government may by order deprivethat person of his citizenship.
(2) If the Federal Government is satisfied that any citizen hasvoluntarily claimed and exercised in any country outside theFederation any rights available to him under the law of thatcountry, being rights accorded exclusively to its citizens, theFederal Government may by order deprive that person of hiscitizenship. ...
If a person holding Malaysian citizenship is found to be using aforeign passport, he will be deemed to have voluntarily claimed andexercised a right which is accorded exclusively to the citizens ofthe foreign country. This will be good reason for the Government toexercise its discretion to deprive the person of his Malaysiancitizenship.
Such power to deprive a person of his citizenship under Article24 of the Constitution can only be validly undertaken by theGovernment, as stated by the Court of Appeal in The Speaker ofDewan Undangan Negeri of Sarawak Datuk Amar Mohamad Asfia AwangNassar v Ting Tiong Choon & Ors and other appeals [2018]12 MLJ 176:
"... As mentioned by the learned judge, while Malaysia doesnot recognise dual citizenship, any deprivation of citizenship mayonly be validly undertaken by the Federal Government pursuant toarts 24 and 27 of the Federal Constitution, or if it wasvoluntarily renounced by the plaintiff himself under art 23 of theFederal Constitution. Until to date, there is no evidence orindication to this effect ..."
2. Am I automatically deprived of my Malaysian citizenship if Iacquire citizenship of another country?
A common misconception about holding dual citizenship inMalaysia is that once a Malaysian accepts foreign citizenship, heis automatically deprived of his Malaysian citizenship. This isinaccurate as the process for deprivation of citizenship does nothappen automatically. There is, in fact, a set of procedures underArticle 27 of the Constitution which must be followed by theGovernment prior to depriving a person of his citizenship.
Article 27 of the Constitution states that:
(a) Prior to making a deprivation order under Articles 24, 25 or26 of the Constitution, the Federal Government shall issue awritten notice to the said person;
(b) The said person shall be informed of (i) the grounds onwhich the deprivation order is proposed to be made; and (ii) hisright to have the case referred to a committee of inquiry;
(c) A committee of inquiry shall be set up wherein the committeewill comprise of a chairman (being a person possessing judicialexperience) and two other members appointed by the FederalGovernment;
(d) An inquiry shall be held by the committee and a report shallbe submitted to the Federal Government; and
(e) The Federal Government shall have regard to thecommittee's report in determining whether to make the saiddeprivation order.
In 2019, the New Straits Times reported that according toTan Sri Muhyiddin Yassin, who was then the Home Minister, anyonecan lodge a report with the National Registration Department onindividuals holding dual citizenships. However, it was furtherstressed by Tan Sri Muhyiddin Yassin that "investigationscannot be done based on allegations" and that the"stripping of citizenship of those who possess doublecitizenships cannot be done" without relevant proof. In otherwords, there must be sufficient evidence against the individualbefore the Government may exercise its discretion to deprive him ofhis citizenship.
3. I was born outside of Malaysia to a Malaysian citizen. Ihave foreign citizenship by virtue of my birth in a foreigncountry. Can the Malaysian government deny my right to Malaysiancitizenship on the basis that I am not allowed to hold dualcitizenship?
A person's foreign citizenship is irrelevant to therecognition of his or her right to Malaysian citizenship byoperation of law. The courts in various cases have held that aperson's foreign citizenship is irrelevant to the question ofwhether a person is entitled Malaysian citizenship by operation oflaw.
In Haja Mohideen MK Abdul Rahman & Ors v Menteri DalamNegeri & Ors [2007] 6 CLJ 662, senior federal counseladvanced the argument that the plaintiffs should not be recognisedas Malaysian citizens on the basis that they were Indian citizensand that Malaysia does not recognize dual citizenship. The HighCourt in rejecting the argument, clarified and held that suchissues are "quite irrelevant" to citizenship by operationof law under Article 14 of the Constitution. However, the HighCourt highlighted that this element may be relevant in anapplication for citizenship by registration under Article 15 of theConstitution.
In Samuel Duraisingh & Anor v Pendaftar Besar Kelahirandan Kematian, Malaysia and another case [2019] 1 LNS 1474, theHigh Court held that the acquisition of foreign citizenship is notrelevant when determining whether the children are entitled tocitizenship by operation of law. The facts that the children hadacquired British citizenship and that the Federal Government maydeprive any citizen of its citizenship under Article 24 of theConstitution were irrelevant.
A similar position was also taken in Kalwant Kaur a/p RattanSingh v Kementerian Dalam Negeri Malaysia & Anor [1993] 2CLJ 648 wherein the High Court held that the question ofdeprivation of citizenship did not arise at that moment because theplaintiff's status as a Federal citizen was stillunascertained.
In our respectful view, the Court of Appeal made an error onthis point in the recent case of Chan Tai Ern Bermillo &Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors[2020] MLJU 215. Here, the child was born in the Philippines to aMalaysian father and a Filipino mother. At the time of thechild's birth, the parents were not legally married. The Courtof Appeal held that because the child was illegitimate, thechild's citizenship is deemed to follow his mother'sFilipino citizenship. The Court of Appeal further took the positionthat because the child is a citizen of the Republic of thePhilippines and holds a Philippines passport, the child is deprivedof his right to Malaysian citizenship under Article 24 of theConstitution.
As discussed above, the consideration by the Court of Appeal ofArticle 24 of the Constitution was premature as the question as towhether or not the child is entitled to Malaysian citizenship byoperation of law had yet to be answered. Further, the power todeprive the child of his Malaysian citizenship on the basis that heholds Filipino citizenship belongs to the Federal Government, andnot to the Judiciary. It is important to remember Malaysiancitizenship by operation of law under Article 14 of theConstitution is different from citizenship by registration underArticle 15(2) or Article 15A of the Constitution. (Click here to read more on citizenship byoperation of law)
4. I am now married to a non-Malaysian and wish to relinquishmy Malaysian citizenship in order to be registered as a citizen ofanother country. Can this be done?
Every Malaysian citizen has the right to renounce his or hercitizenship, as provided for under Article 23 of the Constitution.In 2017, The Star reported that according to anofficial from the National Registration Department there wereapproximately 5,000 people who renounced their Malaysiancitizenship annually.
Pursuant to Article 23 of the Constitution, a person who is ofor over the age of twenty-one years and of sound mind may renouncehis citizenship if he is a citizen of another country, or is aboutto become a citizen of another country. The person shall thensubmit a declaration to the Federal Government via a Form K (seepicture below) and other supporting documents such as passport,birth certificate and foreign citizenship certificate or copy ofconfirmation that the applicant will become the citizen of aforeign country.
Form K – Declaration ofRenunciation of Citizenship of Malaysia
(Akuan Pelepashakan KewarganegaraanMalaysia)
Once the renunciation is registered by the Registrar-General ofCitizenship, the person shall be required to surrender his nationalregistration identity card and/or passport to the Registrar-Generalof Citizenship and by virtue of that, he will cease to be a citizenof Malaysia (see Andrew s/o Thamboosamy v Superintendent ofPudu Prisons, Kuala Lumpur [1976] 2 MLJ 156).
If the applicant who wishes to renounce her citizenship is amarried woman, in addition to the Form K, the applicant will alsoneed to submit her marriage certificate as a supportingdocument.
In the event a person who has renounced their Malaysiancitizenship decides to change his or her mind, the NationalRegistration Department website states that he or she will have toapply to the Federal Government under Article 18(2) of theConstitution before he can be reinstated as Malaysian citizen.
Originally published 23 June, 2020
The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.
