The Significance of Nik Elin’s Case for Constitutional Challenges of Syariah Criminal Provisions

The Significance of Nik Elin’s Case for Constitutional Challenges of Syariah Criminal Provisions

On 9th February 2024, the majority of the Federal Court in Nik Elin Zurina binti Nik Abdul Rashid & Anor v Kerajaan Negeri Kelantan [Federal Court Petition No. BKA-2-05/2022(D)] [“Nik Elin”] held that the following provisions in Kelantan’s Syariah Criminal Code (1) Enactment 2019 are void:

“… Sections 11, 14, 16, 17, 31, 34, 36, 37(1)(b), 39, 40, 41, 42, 43, 44, 45, 47 and 48 …”[1]

(collectively referred to as the “Impugned Provisions”)

Floodgates?

Some quarters have claimed inter alia that Nik Elin’s case is significant as it would open the door to similar legal challenges in relation to Syariah criminal provisions in other states.[2]

At the outset, it is important to note that it is not novel for the constitutionality of Syariah criminal provisions to be the subject of legal challenge.

Pre-Nik Elin, there were recent appellate decisions regarding the constitutionality of Syariah criminal provisions.

The constitutionality of Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 was challenged and the Federal Court in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 [“SIS Forum”] ruled in 2022 that the provision was “unconstitutional and void, as it is a provision which the [Selangor State Legislative Assembly] has no power to make.”[3]

In Iki Putra bin Mubarrak v Kerajaan Negeri Selangor & Anor [2021] 2 MLJ 323 [“Iki Putra”], the Federal Court held in 2021 that Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995 “… is inconsistent with the [Federal Constitution] and is therefore void …”[4]

The constitutionality of Section 23 of the Syariah Criminal Procedure Enactment 2003 was also the subject of legal challenge not too long ago. In 2022, the High Court ruled that the provision was unconstitutional for being inconsistent and ultra vires the Federal Constitution.[5] The High Court’s decision was later reversed on appeal to the Court of Appeal.[6]

It remains to be seen whether Nik Elin’s case will be a catalyst for further similar legal challenges, or whether Nik Elin merely joins a list of successful challenges to the constitutionality of Syariah criminal provisions.

Substantive Test

In terms of the substantive test, the majority of the Federal Court in Nik Elin’s case merely reiterated the established legal position that:

(a) There are certain matters within Parliament’s legislative power/jurisdiction and State Assemblies cannot legislate on those matters, and vice versa:

“… except for matters that fall within the Concurrent List, when the two Lists (Federal and State) are understood and applied correctly, both Parliament and the State Legislatures cannot then ordinarily legislate on matters that fall within the purview of the other.”[7]

(b) The pith and substance doctrine/test, as espoused in Mamat bin Daud & Ors v Government of Malaysia [1988] 1 MLJ 119 (SC), applied:

“It is not the outward appearance of the law in question and the words it uses that matter, rather the law must be examined as a whole to ascertain whether it deals, in pith and substance, with a subject-matter upon which the body making it has the power to enact in accordance with the Legislative Lists.”[8]

Nik Elin’s case is not a game changer on the substantive test for constitutional challenges on Syariah criminal provisions as Nik Elin’s case essentially reiterated the legal approach in Iki Putra and SIS Forum.[9]

Locus Standi

On another hand, Nik Elin’s case is significant as the Petitioners were allowed to challenge the constitutionality of the Impugned Provisions despite the absence of any real and actual controversy affecting the Petitioners’ rights [“Lack-of-Locus-Standi Argument”].

For example, the Petitioners in Nik Elin’s case (unlike in Iki Putra) were not charged with committing any offence under the Impugned Provisions.

The Lack-of-Locus-Standi Argument was the main reason for Abdul Rahman bin Sebli CJSS’ dissenting judgment in Nik Elin’s case.[10]

Dr. Hamid Sultan bin Abu Backer, a former Court of Appeal judge, shares Abdul Rahman bin Sebli CJSS’ views on the Lack-of-Locus-Standi Argument in Nik Elin’s case.[11]

On the issue of locus standi, the majority of the Federal Court in Nik Elin went so far as to say that:

All citizens (and in some cases all persons) are entitled to rely on the FC for protection and to approach the Federal Court for competency challenge under Articles 4(4) and 128 of the Federal Constitution.”[12] (Emphasis mine)

Nik Elin’s case, if not successfully reviewed by the Federal Court pursuant to Rule 137 of the Rules of the Federal Court 1995, would have notably expanded the test for locus standi for constitutional challenges under Articles 4(4) and 128 of the Federal Constitution.

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The Significance of Nik Elin’s Case for Constitutional Challenges of Syariah Criminal Provisions

Unconstitutional Provisions Struck Down in 2022 & 2023

Article 4(1) of the Federal Constitution, which provides the following, empowers the courts to strike down provisions which are inconsistent with the Federal Constitution:[1]

“This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void”

This article intends to present a non-exhaustive list of provisions which have been struck down by the courts in 2022 and 2023 as being unconstitutional.

2022

1. Sections 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 & Sections 3 and 6 of the Pensions Adjustment Act 1980 [as amended by Sections 3 and 7 of the Pensions Adjustment (Amendment) Act 2013]

Section 3 of the Pensions Adjustment (Amendment) Act 2013 substituted Section 3 of the Pensions Adjustment Act 1980 with a new provision of an annual increment of pensions and other benefits by 2%.[2]

Meanwhile, Section 7 of the Pensions Adjustment (Amendment) Act 2013 deleted Section 6 of the Pensions Adjustment Act 1980 on the corresponding last drawn salary of an officer.[3]

The Court of Appeal in Aminah bt Ahmad (suing in her personal capacity and on behalf of 56 retired members of the public services) v The Government of Malaysia & Anor [2022] 4 MLJ 74 struck down the impugned provisions as they were in contravention of Article 147 of the Federal Constitution:

“[47] Accordingly, we make the following declarations:

(a) a declaration that ss 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 are null and void being in contravention of art 147 of the Federal Constitution; and

(b) a declaration that ss 3 and 6 of the Pensions Adjustment Act 1980 as amended by ss 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 and in force since 1 January 2013 are null and void being in contravention of art 147 of the Federal Constitution.

[48]  In substance these declarations are not inconsistent with the actual declarations sought. With these declarations, the situation prevailing before the amendment to s 3 of the PAA 1980 will be revived and continue to apply.”[4] (Emphasis mine)

On appeal to the Federal Court, in The Government of Malaysia & Anor v Aminah bt Ahmad (suing in her personal capacity and on behalf of 56 retired members of the public service) [2023] 5 MLJ 32, the Federal Court agreed with the Court of Appeal’s striking down of the impugned provisions:

“For the above said reasons, we are of the considered view that the amendments to ss 3 and 6 of the PAA 1980 brought about by ss 3 and 7 of the 2013 Amendment Act had resulted in a less favourable situation to the respondents and thus contravene art 147 of the Federal Constitution.”[5] (Emphasis mine)

2. Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003

The impugned provision granted the Syariah High Court jurisdiction to hear applications for judicial review of decisions made by bodies under the Administration of the Religion of Islam (State of Selangor) Enactment 2003:

“The Syariah High Court, may, in the interest of justice, on the application of any person, have the jurisdiction to grant permission and hear the application for judicial review on the decision made by the Majlis or committees carrying out the functions under this Enactment.”[6] (Emphasis mine)

The Federal Court in SIS Forum (M) v Kerajaan Negeri Selangor (Majlis Agama Islam Selangor, intervener) [2022] 2 MLJ 356 struck down the impugned provision on the basis that the provision was a provision which the Selangor State Legislative Assembly has no power to make (pursuant to the State List[7]):

“Reading s 66A of the ARIE 2003 as it stands and upon analysing the basis for judicial review in this country, I find that s 66A of the ARIE 2003 is unconstitutional and void, as it is a provision which the SSLA has no power to make. I accordingly find that the petitioner has overcome the threshold of the presumption of constitutionality.

The petition is allowed and the following declaration as prayed for is unanimously granted:

A Declaration that Section 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 is invalid on the ground that it makes provision with respect to a matter with respect to which the Legislature of the State of Selangor has no power to make, and as such, that said provision is unconstitutional, null and void.”[8] (Emphasis mine)

2023

1. Section 20 of the Extradition Act 1992

The impugned provision laid out the procedure before the Sessions Court where a special direction has been given by the Minister under Section 4 of the Extradition Act 1992.[9]

In Wong Ong Hua & Anor v Public Prosecutor, Malaysia & Ors [2023] MLJU 646 (“Wong Ong Hua”), the High Court struck down the impugned provision on the basis that it offends Article 121(1) of the Federal Constitution:

“In the circumstances of the case, s 20, read together with s 4 of the EA, offends Art 121(1) of the Federal Constitution and ought, therefore, to be struck down, and I so hold.”[10] (Emphasis mine)

It is worth noting that Wong Ong Hua is only a decision of the High Court, and is open to the possibility of being reversed on appeal.[11]

2. Section 4C of the Income Tax Act 1967

The impugned provision considered compensation from compulsory acquisition of land as business income, and therefore subject to income tax:

“For the purpose of paragraph 4(a), gains or profits from a business shall include an amount receiveable arising from stock in trade parted with by any element of compulsion including on requisition or compulsory acquisition or in a similar manner.”[12] (Emphasis mine)

The Federal Court in Wiramuda (M) Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] 4 MLJ 753 struck down the impugned provision as it was in contravention of Article 13(2) of the Federal Constitution:

“For the reasons stated above, we answered question 2 in the affirmative, ie that s 4C of the ITA 1967 is in contravention of art 13(2) of the Federal Constitution as it deprives the appellant of the adequate compensation awarded in accordance with the LAA 1960. Section 4C is thus unconstitutional and liable to be struck down.”[13] (Emphasis mine)

3. Section 498 of the Penal Code

The impugned provision made enticing or taking away or detaining with a criminal intent a married woman, a criminal offence:

“Whoever takes or entices away any woman who is and whom he knows, or has reason to believe, to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals, or detains with that intent any such woman, shall be punished with imprisonment for a term which may extend to two years or with fine or with both.”[14]

In Lai Hen Beng v Public Prosecutor [Federal Court Civil Reference No. 06(RJ)-3-04/2023(B)],[15] the Federal Court struck down the impugned provision as it violated Article 8(2) of the Federal Constitution:

“Having considered the law and parties’ respective submissions, we are convinced that section 498 is unconstitutional for the reason that it unlawfully discriminates only on the ground of gender which is violative of Article 8(2).”[16]

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The Significance of Nik Elin’s Case for Constitutional Challenges of Syariah Criminal Provisions

5 Things About Judicial Estoppel

1. Is recognised in Malaysian jurisprudence

In Kam Thai Eng Linda & Anor v Tan Sri Dato’ Kam Woon Wah & Ors [2023] 1 MLJ 765 (“Kam Thai Eng Linda”), the Court of Appeal was of the view that: :

“… the principle of judicial estoppel is recognised in our shores as enunciated by this court in Nurul Izzah and Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63.”[1] (Emphasis mine)

2. Applies to a position taken by a party in a prior proceeding

In Edwards v Aetna Life and Casualty (1980) 690 F 2s 595 [“Edwards”], the United States Court of Appeals (6th Circuit) made the following observations:

“The doctrine of judicial estoppel applies to a party who has successfully and unequivocally asserted a position in a prior proceeding; he is estopped from asserting an inconsistent position in a subsequent proceeding.”[2] (Emphasis mine)

The above extract was quoted approvingly by Christopher Clarke J in OJSC Oil Co Yugraneft (in liquidation) v Abramovich and others [2008] EWHC 2613 (Comm), which was relied upon by  the Court of Appeal in Leisure Farm Corp Sdn Bhd v Kabushiki Kaisha Ngu (formerly known as Dai-Ichi Shokai) & Ors [2017] 5 MLJ 63 [“Leisure Farm Corp”].[3]

Idrus Harun JCA (later FCJ) also noted in Leisure Farm Corp that:

“It is clear to this court that the object of judicial estoppel is to prevent a party who assumes a particular position in litigation to take an inconsistent position in later litigation.”[4] (Emphasis mine)

See Mee Chun JCA made a similar observation in Kam Thai Eng Linda.[5]

3. To prevent intentional inconsistency

In Peguam Negara Malaysia v Nurul Izzah Anwar & Ors [2017] MLJU 273 (CA) [“Nurul Izzah”], Idrus Harun JCA (later FCJ) held that:

“The essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[6] (Emphasis mine)

Idrus Harun JCA (later FCJ) made the same remark in Leisure Farm Corp:

“Clearly, the essential function of judicial estoppel is to prevent intentional inconsistency while the object of the rule is to protect the court from the perversion of judicial machinery.”[7] (Emphasis mine)

4. To prevent abuse of the judicial process

In Balbeer Singh a/l Karam Singh & Ors v Sentul Raya Sdn Bhd [2022] 1 MLJ 30, the Court of Appeal remarked the following:

“It is important to bear in mind that the theory behind the doctrine of judicial estoppel is that parties should not be permitted to abuse the judicial process by taking inconsistent stands.”[8] (Emphasis mine)

5. May be applied even if detrimental reliance or privity does not exist

The United States Court of Appeals (6th Circuit) observed in Edwards that:

“Unlike equitable estoppel, judicial estoppel may be applied even if detrimental reliance or privity does not exist.”[9] (Emphasis mine)

The above extract was quoted approvingly by Christopher Clarke J in OJSC Oil Co Yugraneft (in liquidation) v Abramovich and others [2008] EWHC 2613 (Comm), which was relied upon by  the Court of Appeal in Leisure Farm Corp.[10]

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The Significance of Nik Elin’s Case for Constitutional Challenges of Syariah Criminal Provisions

Is The Federal Court Bound By Its Previous Decisions?

The doctrine of stare decisis, or judicial precedent, is a “fundamental rule of the common law”[1] which applies within Malaysian jurisprudence.[2]

With regard to the application of the doctrine, it is not disputed that courts are bound by the decisions of superior courts.[3]

A question arises whether, as a general rule, the Federal Court (which is Malaysia’s apex court) is bound by its previous decisions.

Pre-2021

Pre-2021, it appeared that the consensus to the question was in the affirmative and that it was trite law.

In Central Securities (Holdings) Bhd v Haron bin Mohamed Zaid [1980] 1 MLJ 304, the Federal Court held:

“… the Federal Court was bound to follow its previous decisions which have held that an order giving leave to sign final judgment is a final and not an interlocutory order”[4] (Emphasis mine)

Wan Suleiman SCJ in Lorrain Esme Osman v Attorney General of Malaysia [1986] 2 MLJ 288 held that the Supreme Court (now the Federal Court) is bound by its previous decisions when sitting in a constitutional role:

“the Supreme Court sitting in its constitutional role is bound by its previous decision”[5]

The Federal Court in Kerajaan Malaysia v Tay Chai Huat [2012] 3 CLJ 577 was of the view that the Federal Court must follow its proclamations of law made in earlier cases:

“[35] I would think that the attitude of this court towards its previous decisions such as Utra Badi and Vickneswary upon questions of law should, in my opinion be the same. It is of supreme importance that people may know with certainty what the law is, and this end can only be attained by a loyal adherence to the doctrine of stare decisis. Little respect will be paid to our judgments if we overthrow that one day which we have resolved the day before.

[50] … I would think that this court must follow its own proclamations of law made earlier on other cases and honour these rulings. After all, this court is the highest court in the country.”[6] (Emphasis mine)

In Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1, a January 2020 decision, Azahar Mohamed CJM (in delivering the supporting judgment) opined that:

“[17] Indeed, the doctrine of stare decisis dictates that as a matter of a general rule of great importance the Federal Court is bound by its own previous decisions. However, there are exceptional circumstances that allow them to depart from the earlier decision, but such power must be used sparingly.”[7] (Emphasis mine)

Two possible outliers to the apparent consensus on the Question are the decisions of the Federal Court in Dalip Bhagwan Singh v. Public Prosecutor [1997] 4 CLJ 645 (“Dalip Bhagwan”) and Gnanasekaran a/l Krishnasamy v Suruhanjaya Perkhidmatan Awam, Malaysia & Anor [2010] 6 MLJ 441 (“Gnanasekaran”).

In Dhalip Bahgwan, Peh Swee Chin FCJ appeared to be of the view that the doctrine of stare decisis did not apply to the Federal Court:

“The doctrine of stare decisis or the rule of judicial precedent dictates that a court other than the highest court is obliged generally to follow the decisions of the courts at a higher or the same level in the court structure subject to certain exceptions affecting especially the Court of Appeal.”[8] (Emphasis mine)

Having said that, His Lordship went on in Dalip Bhagwan to point out that the Federal Court has the power to depart from its previous decisions and that the power should be exercised sparingly[9] thereby implying an affirmative answer to the Question.

In Gnanasekaran, Richard Malanjum CJ (Sabah and Sarawak) [later CJ] mentioned in passing that the Federal Court is not necessarily bound by its earlier decisions:

“After all this court is not necessarily bound by its own earlier decision and may depart from it where necessary (see Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1; [2010] 2 CLJ 269).”[10] [Emphasis mine]

Richard Malanjum CJ (Sabah and Sarawak)’s intentional use of the word “necessarily” and understood in the context of his point of the Federal Court being able to depart from its previous decisions where necessary, His Lordship appears to be of view is that the Federal Court is not bound without exceptions to its earlier decisions. As a general rule, it is likely that His Lordship would have agreed that the Federal Court is bound by its previous decisions.

2021

In 2021, in two of its decisions, the Federal Court answered the Question in the negative.

In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] MLJU 12 (“Maria Chin”), a decision of the Federal Court delivered on 12th January 2021, the majority held that:

“[55] Having regard to the principles laid down in these cases, I am unable to accept the appellant’s argument that Sugumar Balakrishnan was decided per incuriam. First of all, being a decision of the apex court, it is not subject to the stare decisis rule. It was therefore wrong for counsel to say that it has no binding effect as a precedent on the ground that “it ignored a plethora of cases of high authority which established beyond peradventure that even widely worded ouster clauses cannot exclude judicial review”.”[11] (Emphasis mine)

Months later, the Federal Court in Goh Leong Yong v ASP Khairul Fairoz Rodzuan & Ors [2021] 8 CLJ 331 (“Goh Leong Yong”) decided as follows:

“[178] … In short, Dalip Bhagwan Singh was concerned with the doctrine of stare decisis which, as I mentioned, applies only to courts below the Federal Court. As for the Federal Court itself, it is only constrained by the per incuriam rule.” (Emphasis mine)

Post-2021

In a recent decision, post-Maria Chin and post-Goh Leong Yong, the Federal Court in Tenaga Nasional Berhad v Chew Thai Kay & Anor [2022] 2 CLJ 333 appears to have reverted to the pre-2021 position:

“We will say at once that overturning our own precedent is a serious matter. This court must always respect its own precedents. The rule of legal precedence must be followed in the interest of certainty. Great sanctity must be attached to the finality of our judgment. This is not to say that this court should never depart from an earlier decision. We do not blindly honour stare decisis. While it is true that we can overturn our own precedent in exceptional cases where it is really necessary, as an apex court, we need to be cautious about departing from our own earlier decision especially in a case that concerns the interpretation of a legislative provision, lest we lose the trust of public by persistent shifts of laws.”[12] (Emphasis ours)

It remains to be seen whether Maria Chin and Goh Leong Yong will be considered as blips in Malaysian jurisprudence on the doctrine of stare decisis or whether they will form the foundation which will develop the doctrine in the direction of other Commonwealth jurisdictions, some of which were pointed out by Hashim Yeop Sani CJ in Government Of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ Rep 63:

“On the question of binding precedents the House of Lords is no longer bound by its own previous decisions – see Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 issued by Lord Gardiner LC on behalf of himself and the Lords of Appeals in Ordinary on 26 July 1966. The Indian Supreme Court in The Bengal Immunity Company Limited v. The State of Bihar & Ors. [1955] 2 SCR 603 held that it would not be bound by its own previous decisions and that nothing in the Constitution prevented the Supreme Court from departing from its previous decisions. The United States Supreme Court too has a number of times reversed itself. The Privy Council has also held that it was not absolutely bound to follow its earlier decisions.”[13]

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The Significance of Nik Elin’s Case for Constitutional Challenges of Syariah Criminal Provisions

Citizenship: An Exclusive Right of the Federal Government?

Datuk Seri Saifuddin Nasution bin Ismail, the Minister of Home Affairs (“Minister”), was recently quoted as having said that:

“The granting of Malaysian citizenship to non-citizen individuals is the exclusive right of the government, which is not offered and given arbitrarily.”[1]

Earlier this year, the Minister repeated a similar line in Parliament when he said:

“Malaysian citizenship is an exclusive right of the federal government, so it takes time to consider the application for Malaysian citizenship”[2]

An issue which arises from the Minister’s remarks is whether Malaysian citizenship is an exclusive right of the Federal Government.

In short, Malaysian citizenship is an exclusive right of the Federal Government only in relation to citizenship by registration and naturalisation.

The Minister’s remarks, although not legally incorrect, can be misleading when used too broadly in a manner so as to appear to apply to all citizenship pathways.

As correctly pointed out by the majority decision of the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] 4 MLJ 236 (“CTEB”), there are four pathways of acquiring Malaysian citizenship and they are:

“(a) operation of law (art 14);

(b) registration (arts 15, 15A, 16, 16A and 18);

(c) naturalisation (art 19); or

(d) incorporation of territory (art 22).”[3]

Operation of law

In relation to citizenship by operation of law, the majority in CTEB made it clear that it is automatic:

“[128]  Of the four categories, the operation of law citizenship is almost automatic. One either fits the given criteria under the FC or one does not. The criteria are clearly stipulated in the FC and it does not require any exercise of discretion by the authority.

[130]  The segregation between these two broad classes vis by operation of law and other forms of citizenship (registration and naturalisation) is mainly this: The other categories of citizenship may be acquired through an application to the Federal Government upon the required conditions being fulfilled. Thus, unlike the operation of law citizenship, their qualifications are not automatic at birth. They become qualified upon fulfilling the stipulated conditions.”[4] (Emphasis mine)

Emeritus Professor Datuk Dr Shad Saleem Faruqi’s views in his book titled Our Constitution, reproduced below, were referred to and relied on by the majority in CTEB:[5]

“Birth and descent: This type of citizenship is also referred to as citizenship by operation of law. Its complex details are found in Article 14(1)(a) and the Second Schedule, Part 1. It confers an automatic right of citizenship without oath and without any official discretion on the following categories of persons.”[6] (Emphasis mine)

The Federal Court in CCH & Anor (on behalf of themselves and as litigation representatives of one CYM, a child) v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia [2022] 1 MLJ 71 made it clear that citizenship by operation of law is a fundamental and constitutional right:

“In this regard and with respect, we are minded to observe that citizenship by operation of law is a right — a fundamental and constitutional right. It leaves absolutely no room for the exercise of subjective notions or presuppositions on what citizenship is. The words citizenship ‘by operation of law’ could not be any clearer, and there is no room whatsoever for discretion. The FC reigns supreme at all times and the respondent and all related bodies are bound to comply with its dictates.”[7] (Emphasis mine)

If citizenship by operation of law is automatic, and is a fundamental and constitutional right, it cannot be said to be an exclusive right of the Federal Government.

Registration

The majority in CTEB recognised that the Federal Government will exercise its discretion when it comes to citizenship by registration:

“To illustrate this point we can take a citizen by registration as an example. One of the persons qualified to apply is a married woman who is a wife of a Malaysian citizen. Why I refer her as a person who qualifies is because she is eligible to apply for citizenship to the Federal Government, who then will exercise its discretion. She must first satisfy the prerequisites of art 15(1)(a) in that she must reside in the Federation for a continuous period of two years, before applying, and (b) she must be of good character. These two conditions are subjected to further qualifications in arts 15(4) and (5). It says if she had resided in the States of Sabah or Sarawak before Malaysia Day she is treated as residing in the Federation. Then her marriage to the Malaysian citizen must be registered in accordance with any written law (see art 15(5)).”[8] (Emphasis mine)

Since the Federal Government is the sole party entrusted by the Federal Constitution to exercise its discretion vis-a-vis citizenship by registration, the Federal Government can be said to have an exclusive right over citizenship by registration.

Naturalisation

In relation to citizenship by naturalisation, based on the phraseology employed in Article 19 of the Federal Constitution, it involves an exercise of discretion wholly by the Federal Government:

“(1) Subject to Clause (9), the Federal Government may, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied

(2) Subject to Clause (9), the Federal Government may, in such special circumstances as it thinks fit, upon application made by any person of or over the age of twenty-one years who is not a citizen, grant a certificate of naturalization to that person if satisfied—” (Emphasis mine)

Azizul Azmi Adnan J (now JCA) in Chandra Morgan Velutham @ Velautham & Anor v Ketua Pengarah Pendaftaran Negara & Ors [2022] MLJU 1452 recognised that there is an exercise of power and discretion by the Federal Government when it comes to citizenship by naturalisation:

“The second mode by which citizenship is acquired is by the exercise of a power of the Federal government to register a person as a citizen, to issue a certificate of naturalization or to issue a certificate of citizenship. It is the exercise of the power and discretion under this second mode that section 2 of Part II of the Second Schedule purports to immunise from curial oversight.”[9] (Emphasis mine)

Given that the Federal Government has been wholly entrusted by the Federal Constitution to exercise its discretion vis-a-vis citizenship by naturalisation, citizenship by naturalisation can be said to be an exclusive right of the Federal Government.

Incorporation of Territory

Pursuant to Article 22 of the Federal Constitution, Parliament is entrusted with the power of determining citizenship by incorporation of territory:

“If any new territory is admitted to the Federation after Malaysia Day in pursuance of Article 2, Parliament may by law determine what persons are to be citizens by reason of their connection with that territory and the date or dates from which such persons are to be citizens.” (Emphasis mine)

Considering citizenship by incorporation of territory is under Parliament (the Legislature)’s purview, as opposed to an exclusive exercise of discretion by the Federal Government (the Executive), it cannot be said to be an exclusive right of the Federal Government.


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