The ‘Genuine and Effective Link’ unless statute indicates otherwise. 29 There is no similar analogue in Malaysian law. Section 3 of the Civil Law Act 1956, 30 passed before Malaysia achieved independence, obliged the courts to apply the English common law and rules of equity as they stood on 7 April 1956. Thus, customary international law recognised by the English courts up until that date has been incorporated into the Malaysian common law — not by being recognised as customary international law, but rather as part of the English common law. Does post-April 1956 customary international law have any place in Malaysian law? The only Malaysian Supreme Court case that touches upon the matter seemingly accepts that customary international law (more specifically, the doctrine of state immunity) can be incorporated into domestic law. 31 Problematically, this acceptance was made by citing an English Court of Appeal decision, thus offering little clarity beyond the position already defined by the 1956 Act. Some commentators have suggested that the Malaysian courts ought to emulate their English counterparts and develop Malaysian common law to recognise customary international law. 32 Until such a decision is handed down, however, customary international law’s position in Malaysian law remains unclear, barring those elements incorporated via English common law. On the whole, Malaysian law maintains a strict dualist approach to international law. Whilst there are hints that this position is gradually being liberalised, these developments have generally occurred at the High Court level and have yet to be acknowledged by the upper courts. In the context of this article, for the ‘genuine and effective link’ principle to become a supplementary element of the s 1(e) test to confer citizenship by operation of law, the initial hurdle of incorporation into domestic law must first be surmounted. This issue is discussed in greater detail in Part V. THE COURT OF APPEAL ON CITIZENSHIP AND STATELESSNESS The current approach adopted by the Malaysian courts in statelessness cases is set out in several leading Court of Appeal decisions. Here, I argue that the application of the existing test effectively denies citizenship to stateless persons who would otherwise be eligible according to sch II pt II s 1(e) of the Constitution. A particular issue is the courts’ repeated failure to engage in a substantive analysis of whether the applicant has, in fact, acquired the citizenship of another state. This problem is compounded by the fact that the test has been applied inconsistently, resulting in the case law becoming contradictory and thus undermining legal certainty. 29 30 31 32 See R (on the application of Al-Skeini) v Secretary of State for Defence [2007] UKHL 26, [45]; Salomon v Commissioners of Customs and Excise [1967] 2 QB 116, 143. Civil Law Act 1956 (United Kingdom). Commonwealth of Australia v Midford (Malaysia) Sdn Bhd [1990] 1 MLJ 475. The Supreme Court was replaced as the apex court of Malaysia by the Federal Court in 1994. Jaclyn Neo (n 17); Abdul Ghafur Hamid @ Khin Maung Sein, ‘Judicial Application of International Law in Malaysia: An Analysis’, Malaysian Bar (Web Page, 31 March 2006) <https://www.malaysianbar.org.my/article/news/legal-and-general-news/legalnews/judicial-application-of-international-law-in-malaysia-an-analysis>. 315