The ‘Genuine and Effective Link’
application is rejected, subsequent consecutive applications may still be made
provided that the applicant has not reached the cut-off age of 21.
This article is primarily concerned with the conferral of citizenship by operation
of law upon in situ stateless persons born in Malaysia by way of s 1(e). Article 14
of the Constitution states:
14. Citizenship by Operation of Law
1.
Subject to the provisions of this Part, the following persons are citizens by
operation of law, that is to say:
…
(b) every person born on or after Malaysia Day, and having any of the
qualifications specified in Part II of the Second Schedule.
The relevant parts of sch II pt II provide:
1. Subject to the provisions of Part III of this Constitution, the following persons
born on or after Malaysia Day are citizens by operation of law, that is to say:
(a) every person born within the Federation of whose parents one at least is
at the time of the birth either a citizen or permanently resident in the
Federation; and
…
(e) every person born within the Federation who is not born a citizen of any
country otherwise than by virtue of this paragraph.
2. (1) A person is not a citizen by virtue of paragraph (a), (d) or (e) of section 1
if, at the time of his birth, his father, not being a citizen, possesses such
immunity from suit and legal process as is accorded to an envoy of a sovereign
power accredited to the Yang di-Pertuan Agong, or if his father is then an
enemy alien and the birth occurs in a place under the occupation of the enemy.
…
(3) For the purposes of paragraph (e) of section 1 a person is to be treated as
having at birth any citizenship which he acquires within one year afterwards
by virtue of any provision corresponding to paragraph (c) of that section or
otherwise. 4
Section 17 of sch II pt III further provides that where the person in question is
born out of wedlock, any references to their (biological) father/parent/one of their
parents are to be construed as references to their mother.
The citizenship provisions in the Constitution have been subject to several
amendments since Malaysia’s independence in 1957. Originally, the provisions
adopted a strict jus soli approach in conferring citizenship upon ‘every person born
within the Federation [of Malaya] on or after Merdeka Day’. 5 The jus sanguinis
principle was introduced into art 14(1)(b) by the Constitution (Amendment) Bill
4
5
ibid (emphasis added).
Constitution of the Federation of Malaya (1957) (no longer in force) sch II pt I s 1(b).
311