Citizenship Laws in Malaysia

Introduction 

Citizenship is an important construct that provides those who hold it with a sense of security and  belonging, as well as legally linking the individual and their state.1It is generally defined as a state  of being a member of a particular country, and having rights as a result of this.2In Malaysia, the  laws pertaining to citizenship can be found under Part III (Articles 14 to 31)3, and the Second  Schedule4of the Federal Constitution where it states the laws on acquisition, termination and any  supplemental factors of having Malaysian citizenship. However, these laws have been subject to a  great deal of controversy for being discriminatory and unjust. This article will therefore discuss  and examine Malaysia’s citizenship laws under the Federal Constitution with a particular focus on  its controversy, who it has affected and suggested reforms to allow for just laws.  

A Brief History 

Malaysian citizenship laws have existed since even before the nation’s independence and have evolved significantly since then. It has been shaped by various influences such as British  Colonialism, federalist principles which are intertwined with politics of communism and ethnic  nationalism.5It is important to understand that there are two core principles in determining  citizenship in Malaysia, which is jus soli and jus sanguinis. Jus soli translates to “right of soil”  which means that birthplace determines the citizenship of that person. Jus sanguinis refers to the “right of blood”, meaning that the right to citizenship comes from bloodline, more specifically, the  citizenship of one or both parents of that particular State.6 

The first attempt to introduce Federal citizenship to Malaysia took place in 1946 as an attempt to  “assist the crystallisation of a Malayan nation” and to serve as a “nation-building agency”7 which  entailed giving birth-right citizenship to all residents. This meant that the sole reason for wanting  to establish citizenship in Malaysia was solely for the purpose of unity between those who are born or reside in the country. However, because the Malayan Union plan did not last long, a  constitutional arrangement known as the Federation of Malaya was born on 1 February 1948, and  a local citizenship of the Federation was created. However, citizenship of this Federation was not  a nationality in an international sense as Malaya was still within the Commonwealth.8 Therefore,  Malayan citizenship laws (at the time) were created to bring about national harmony between the  so-called citizens of the nation. Malay state nationality did not have any legal significance until  after Merdeka Day in 19579, and in 1963, when Sabah, Sarawak and Singapore had joined Malaya  to form the Federation of Malaysia, it had formed new legal complexities as Singapore had its own  legislated citizenship ordinance in 1957 prior to its independence through merger. However, when  Singapore left the Federation in 1965, this eliminated any complexities involving Federal  citizenship. As a result, this led to Malaysia only recognising Federal citizenship under the  constitution, meaning that dual citizenship for any Malaysian citizenship is not allowed by law.10 

Citizenship Laws According to the Federal Constitution and its Controversy 

As mentioned above, the laws regarding citizenship are stated in Part III of the Federal  Constitution, that is, Articles 14 to 31, as well as the Second Schedule.11 The main methods of  acquiring Malaysian citizenship are by operation of law, which is governed under Article 1412,  registration, naturalisation and incorporation of territory. However, throughout the years since  Malaysia’s independence in 1957, any amendments made to the Constitution have made  citizenship harder to acquire and easier to lose due to the widened jurisdiction that the government  has on matters pertaining to citizenship, especially in regards to discrimination based on gender.13 It is this predominant issue which will be discussed in this article. 

Initially, Malaysia had vowed that a single-nationality policy would be a more inclusive approach  to obtaining citizenship,14 as it was based on the principle of wanting to unite the so-called citizens of the Federation. However, this was dramatically revised under the Constitutional (Amendment) Act 196215 where it introduced a requirement for children who were born within the Federation,  that is, that they can only claim Federal Citizenship if at least one parent were a citizen or  permanent resident.16 This change posed to be very significant as it had broken the principle of jus  soli and instead placed a greater importance on jus sanguinis, making citizenship much stricter and  harder to acquire. This amendment had established a policy that prioritised national attachment  over the birth-right citizenship within the country’s borders.17 Nevertheless, despite this  amendment placing a greater importance of jus sanguinis, it had still maintained the jus soli  principle in two ways, which was that citizenship would be granted to those born in the Federation  and not born a citizen elsewhere, who would otherwise be at risk of statelessness.18 

It is also important to note the provisions in regards to gender equality in the Federal Constitution was introduced in 2001 under Article 18.19 However, despite equality being expressly stated in the  constitution, there still exist patriarchal values embedded within the Constitution, especially under  the provisions regarding citizenship. For example, under Part II of the Second Schedule, S1(b) expressly states that ‘every person born outside the Federation on or after Merdeka Day whose  father is a citizen at the time of the birth and either was born within the Federation or is at the time  of the birth in service under the Government of the Federation or of a State’.20 Another example  is under S1(c), which states ‘every person born outside the Federation whose father is at the time  of the birth a citizen and whose birth is, within one year of its occurrence or within such longer  period as the Federal Government may in any particular case allow… registered with the Federal  Government.’21 These provisions therefore explain that Malaysian mothers cannot confer  citizenship to their overseas-born children, and that this right is only given to Malaysian fathers. Although the Constitution has included a provision which promotes equality, it has not eliminated  discrimination based on gender entirely, especially in regards to Federal Citizenship.22 

The issues concerning Malaysia’s gender-biased citizenship laws are considerably very important  as they have a great effect on the population, especially for women and for stateless children. The UNCHR defines ‘statelessness’ as a person who is not considered a citizen or national by any State  under the operation of its law.23 According to the Development for Human Resources for Rural  Areas, there have been 16,392 identified stateless persons in Peninsular Malaysia from June 2016  to June 202324 and by the end of 2023, the UNCHR had published that there were 117,070 persons  under its statelessness mandate.25 Moreover, the recent Constitution (Amendment) Act 202526 has  reduced the age limit for registration of citizenship from 21 years old to 18 years old instead, as  provided under Article 15.27 Thus, by shortening the application timeframe, it will lead to more  lengthy application processes and more ineffective bureaucracy as stateless people may not be able  to secure citizenship.28 But why is statelessness such a major issue? ‘Stateless’ children end up  losing out on basic rights due to their lack of belonging. Basic rights such as the right to education and the ability to work are lost, and this is a pressing issue which shows how gender bias has led  to a larger legal issue at hand, as stateless people are caught in a vicious cycle because of what is stated in the Constitution. 

In addition to this, many Malaysian women, especially those who are married to foreigners, have  been gravely impacted as they are unable to confer their citizenship unto their children. This has  led to many Malaysian women returning to their home countries to give birth to their children and  acquire citizenship for them to avoid statelessness. There have been many movements challenging  these laws and demanding equality between the male and female citizens of Malaysia, with the  most notable case being Suriani Kempe & Ors v Kerajaan Malaysia & Ors [2021] MLJU 151729,  where six Malaysian mothers filed a suit to contest the Second Schedule, Section 1 (b) and (c) of  the Federal constitution to be able to confer citizenship to their children. Although the High Court  sided with the mothers, the 2-1 decision at the Court of Appeal had overturned the High Court’s ruling, arguing that gender discrimination was constitutionally permissible except where explicitly  stated in the Federal Constitution.  

Reforms 

It is imperative to find methods to resolve the issue of gender discrimination and statelessness in  Malaysia, and a step has been taken to do so. According to the Constitution (Amendment) Act  202530 which was passed in the most recent Parliamentary session (as at 14 April 2025), there have  been amendments to change ‘whose father’ to ‘of whose parents one at least’, which provides for  Malaysian mothers to confer citizenship to overseas-born children as well. However, this  amendment has yet to come into effect, meaning that these issues still persist in Malaysia.  Rodziana Mohamed Razali and Chin Chin Sia have suggested multiple reforms, including  organising public consultations to allow for the government to understand the impact of such  restrictive laws on the thousands of people affected by it. Moreover, they have recommended to  implement an improved and transparent citizenship application process to provide a reasonable  time limit, and standard operating procedures to ensure that the application process is not as  lengthy as it normally is. 

Conclusion 

While steps have been taken to improve the strict citizenship laws in Malaysia, there is still a long  way to go to ensure that statelessness is resolved. It is imperative for the government to listen to  the population to be able to identify and properly correct the Constitution, which can be done by taking statistical information and holding forums to show the citizens of Malaysia that they are  listening, as this will ultimately improve the community in Malaysia, which was the philosophy  behind the origins of the nation’s citizenship laws. 

Reference (S):

1. OCHR, ‘OCHR and the Right to a Nationality’ (OCHR, no given date)  <https://www.ohchr.org/en/nationality-and-statelessness> accessed 10 April 2025 2. Cambridge Dictionary, ‘Meaning of Citizenship’ (Cambridge English Dictionary, no given  date) <https://dictionary.cambridge.org/dictionary/english/citizenship> accessed 10 April  2025 
2. Choo Chin Low, ‘Report on Citizenship Law: Malaysia and Singapore’, [2007], European  University Institute 
3. Nor Hafizah Mohd Badrol Afandi ‘Living in Limbo: In Malaysia, Adopted Children Are  not Guaranteed Citizenship’ (The Star, 2 June 2020)  <https://www.thestar.com.my/opinion/letters/2020/06/02/living-in-limbo-inmalaysia adopted-children-are-notguaranteed-citizenship> accessed 10 April 2025 
4. Sheridan L.A, The Constitution of Malaysia (4th edn, Malayan Law Journal Ltd 1979) 6. Rodziana Mohamed Razali and Chin Chin Sia, ‘Towards Equitable, Transparent and  Evidence Based Malaysian Citizenship Law Amendments: Taking Stock of Remaining  Risk of Statelessness and Exclusion’ 6(2) Statelessness and Citizenship Review 7. Constitution (Amendment) Act 1962 
5. Visu Sinnadurai, ‘The Citizenship Laws of Malaysia’, [1978] 68, Oxford University Press  76-77 
6. UNCHR, ‘About Statelessness’ (UNCHR, no given date) <https://www.unhcr.org/ibelong/about-statelessness/> accessed 14 April 2025 10. Malay Mail, ‘Amendments to nationality law must prioritise protection of Malaysian  families — Development of Human Resources for Rural Areas (DHRRA) Malaysia’ (Malay Mail, 2 November 2023) <https://www.malaymail.com/news/what-you think/2023/11/02/amendments-to-nationality-law-must-prioritise-protection-of malaysian-families-development-of-human-resources-for-rural-areas-dhrra malaysia/99792> accessed 14 April 2025 
7. UNCHR, ‘Refugee Data Finder: Annex 1 —Populations Protected and/or Assisted by  UNHCR by Country/Territory of Asylum’ (UNCHR, 12 January 2025 https://perma.cc/7LRH-FVQ5
8. Constitution (Amendment) Act 2025 
9. Suriani Kempe (Presiden dan pemegang jawatan Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers)) & Ors v Kerajaan Malaysia & Ors [2021] MLJU 1517

1 OCHR, ‘OCHR and the Right to a Nationality’ (OCHR, no given date) <https://www.ohchr.org/en/nationality-and statelessness> accessed 10 April 2025 

2 Cambridge Dictionary, ‘Meaning of Citizenship’ (Cambridge English Dictionary, no given date)  <https://dictionary.cambridge.org/dictionary/english/citizenship> accessed 10 April 2025 3 Federal Constitution of Malaysia, Chapter 3 

4 Federal Constitution of Malaysia, Second Schedule 

5 Choo Chin Low, ‘Report on Citizenship Law: Malaysia and Singapore’, [2007], European University Institute 6 Nor Hafizah Mohd Badrol Afandi ‘Living in Limbo: In Malaysia, Adopted Children Are not Guaranteed  Citizenship’ (The Star, 2 June 2020) <https://www.thestar.com.my/opinion/letters/2020/06/02/living-in-limbo inmalaysia-adopted-children-are-notguaranteed-citizenship> accessed 10 April 2025 

7Ibid at 5

8Ibid at 5 

9 Lionel Astor Sheridan, The Constitution of Malaysia (4th edn, Malayan Law Journal Ltd 1979) 10 ibid 

11 Federal Constitution of Malaysia, Articles 14-31, Second Schedule 

12 Federal Constitution of Malaysia, Article 14 

13 Ibid at 5 

14 Rodziana Mohamed Razali and Chin Chin Sia, ‘Towards Equitable, Transparent and Evidence Based Malaysian  Citizenship Law Amendments: Taking Stock of Remaining Risk of Statelessness and Exclusion’ 6(2) Statelessness  and Citizenship Review

15 Constitution (Amendment) Act 1962 

16 Visu Sinnadurai, ‘The Citizenship Laws of Malaysia’, [1978] 68, Oxford University Press 76-77 17 Ibid at 5 

18 Federal Constitution of Malaysia, Article 14 (1)(b), Second Schedule, Part II, S1(e) 

19 Federal Constitution of Malaysia, Article 18,  

20 Federal Constitution of Malaysia, Second Schedule, Part II, S1(b) 

21Federal Constitution of Malaysia, Second Schedule, Part II, S1(c) 

22 Ibid at 13

23 UNCHR, ‘About Statelessness’ (UNCHR, no given date) <https://www.unhcr.org/ibelong/about-statelessness/> accessed 14 April 2025 

24 Malay Mail, ‘Amendments to nationality law must prioritise protection of Malaysian families — Development of  Human Resources for Rural Areas (DHRRA) Malaysia’ (Malay Mail, 2 November 2023) <https://www.malaymail.com/news/what-you-think/2023/11/02/amendments-to-nationality-law-must-prioritise protection-of-malaysian-families-development-of-human-resources-for-rural-areas-dhrra-malaysia/99792> accessed  14 April 2025 

25 UNCHR, ‘Refugee Data Finder: Annex 1 —Populations Protected and/or Assisted by UNHCR by  Country/Territory of Asylum’ (UNCHR, 12 January 2025 <https://perma.cc/7LRH-FVQ5> 26 Constitution (Amendment) Act 2025 

27 Federal Constitution of Malaysia, Article 15 

28 Ibid at 14 

29 Suriani Kempe (Presiden dan pemegang jawatan Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers)) & Ors v Kerajaan Malaysia & Ors [2021] MLJU 1517

30 Constitution (Amendment) Act 2025