Laws on Citizenship in Malaysia
Laws on Citizenship in Malaysia

Laws on Citizenship in Malaysia

Introduction

The laws on citizenship in Malaysia are basically enshrined in our Federal Constitution, that is the supreme law of our land.

In this article, we put up a bird’s-eye view of how we as Malaysians actually acquired our citizenship, either by operation of law or through an application. 

Article 14(1)(b) of the Federal Constitution

Most Malaysians acquired citizenship by operation of law under this provision. This article basically says the following persons are citizens by operation of law:-

(a)        he/she was born on or after Malaysia day on 16 September 1963 in Malaysia and one of the parents at least is a citizen; or

(b)        in the event he/she was born on or after Malaysia day on 16 September 1963 outside Malaysia, then at the time of birth his/her father was a Malaysian citizen and the birth is registered at a consulate of Malaysia within a year or within such longer period as the Federal Government may in any particular case allow.

Once all the requisite requirements are met, the person is automatically a citizen. There is no room for discretion by the authorities.

The recent case of Madhuvita Janjara Augustin (suing through next friend Margaret Louisa Tan) v Augustin al Lourdsamy & Ors [2018] 1 MLJ 307 held that through subsequent marriage of the child’s biological parent, the child who was borne out of wedlock can be legitimated by virtue of the subsequent marriage of her parents.

Where that happened, s4 of the Legitimacy Act 1961 applied to render the child legitimate. And as a legitimate person, the child was entitled to rely on her father’s Malaysian citizenship under Article 14(1)(b) to acquire citizenship.

Article 15(1) of the Federal Constitution

Any married woman whose husband is a Malaysia citizen may make an application to the Federal Government to be registered as a citizen if the marriage was subsisting and the husband is a citizen at the beginning of October 1962 provided that she has resided in Malaysia throughout the 2 years preceding the date of the application and intends to do so permanently and that she is of good character.

Article 15(2) of the Federal Constitution

The Federal Government may cause any person under the age of twenty-one (21) years of whose one of the parents is (or was at death) a Malaysian, to be registered as a citizen upon application made to the Federal Government by his parent or guardian. 

Citizenship by application under Article 15(1) and Article 15(2) are rather easy as the requirements are clear.

Article 15A of the Federal Constitution (Special Circumstances)

The Federal Government may cause any person under the age of twenty-one (21) years to be registered as a citizen in such special circumstances as it thinks fit.

Such application must be made by the parent or guardian who is relative to the person to be registered.  

Article 19 of the Federal Constitution

A person may acquire citizenship by naturalization.

Naturalization is a legal process by which Malaysia citizenship is granted to a non-citizen upon fulfilling certain requirements.

The Federal Government may upon application made by any person of or over the age of twenty-one (21) years old, grant a certificate of naturalization to that person provided that he/she has resided in the Federation for the required periods and if the certificate is granted and intends to do so permanently and that he/she is of good character and has an adequate knowledge of the Malay language.

It is the discretion of the Federal Government to grant citizenship under Article 15A and Article 19.

What constitute ‘special circumstances’ under Article 15A

This is not defined.

In this respect, perhaps the recent incidents have shed some lights on the idea of special circumstances as in Article 15A of Federal Constitution.

This is an instance of an ‘illegitimate’ child who was born out of wedlock of the parents in Malaysia, i.e. the parents were not married to each other at the time of the child’s birth.

Under Malaysian law, an illegitimate child must take on the citizenship of his or her natural mother.

If the mother is a Malaysian, the child will be a Malaysian by virtue of Article 14(1)(b). But, if the mother is a foreign citizen, the child’s citizenship will be stated as ‘bukan warganegara’ or ‘non-citizen’ in his or her birth certificate, thus also known as ‘stateless’ child.

In this instance, the child may apply for citizenship under Article 15A of Federal Constitution, the ground of special circumstances, as seen in recent cases where NRD seems to allow such application.

Arguably, Article 15A should also be applicable to the abandoned newly born baby and the abandoned child in which their parents are unknown for grant of citizenship to the guardian or adopter.

Section 19B of Part III of Second Schedule of Federal Constitution 

Any newborn child found exposed in any place shall be presumed to have been born there of a mother permanently resident there unless it can be shown otherwise;

and if he is treated by virtue of this section as so born, the date of the finding shall be taken to be the date of the birth.

 

All in all, be it an illegitimate child, stateless child, abandoned child, it is arguable that the only way to acquire the citizenship is by way of adoption and then, apply for citizenship under Article 15A of Federal Constitution, on the ground of special circumstances.

You may also refer to Adoption in Malaysia: Frequently Asked Questions for more information on the citizenship of the adopted child.

 
About the Author: 

This article was written by Chia Swee Yik, Partner of this Firm (+6016 2148 218, chia@chialee.com.my) (assisted by paralegal, Ooi Zhuang Hong) who has provided practical advice on citizenship in Malaysia. 

Feel free to contact him if you have any queries.

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