TANAH TUMPAHNYA DARAHKU: THE ‘GENUINE AND EFFECTIVE LINK’ IN ESTABLISHING MALAYSIAN CITIZENSHIP TAN KIAN LEONG * Article 14(1)(b) of the Federal Constitution of Malaysia, when read together with sch II pt II s 1(e), theoretically acts as a safety net for Malaysian-born persons by conferring citizenship upon those who would otherwise be stateless. In practice, however, these provisions have been interpreted as imposing a dual jus soli/jus sanguinis requirement that must be satisfied before citizenship can be granted. Consequently, many persons prima facie entitled to Malaysian citizenship by operation of law are deprived of their entitlement. This article explores the possibility of adopting the Nottebohm (Liechtenstein v Guatemala) ‘genuine and effective link’ principle as a supplementary element of the s 1(e) citizenship test. Support for adoption is derived from the Parliament of Malaysia’s intent throughout the history of amendments to the citizenship provisions in the Constitution. The article further considers the plausibility of a direct legal transplantation of the principle into Malaysian law, drawing upon various sources including international law and English common law. TABLE OF CONTENTS Introduction........................................................................................................... 309 Citizenship Legislation in Malaysia and Interaction with International Law ....... 310 A Citizenship and the Constitution............................................................... 310 B The Relationship between Malaysian Domestic Law and International Law...................................................................................... 313 The Court of Appeal on Citizenship and Statelessness......................................... 315 The ‘Genuine and Effective Link’ Principle As a Supplementary Element of the Citizenship Test .................................................................................................... 320 Hurdles against the Adoption of the ‘Genuine and Effective Link’ Principle ...... 322 A International Law...................................................................................... 323 B English Common Law .............................................................................. 325 C Citizenship by Naturalisation ................................................................... 326 D Direct Legal Transplantation: An Impossibility? ..................................... 327 Conclusion ............................................................................................................ 328 INTRODUCTION Article 14(1)(b) of the Federal Constitution of Malaysia (‘the Constitution’), read together with sch II pt II s 1(e), acts as a safety net for Malaysian-born persons by conferring citizenship upon those who would otherwise be stateless. In practice, the courts have interpreted these provisions as imposing a dual jus soli/jus sanguinis requirement that must be satisfied before citizenship is granted. I argue that the existing test (i) has been applied inconsistently, resulting in legal uncertainty and (ii) perpetuates substantive unfairness by depriving persons falling * Bar Vocational Studies Candidate, City, University of London; LLB (Hons), University College London. The author would like to thank his dissertation supervisor, Kimberley Trapp for her advice and comments on earlier versions of this article, and Matilde Masetti-Placci and Shukri Ahmad Shahizam, without whom this article would not have been possible. Any errors and oversights are the author’s alone.

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