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.”
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”
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  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).”
Operation of law
In relation to citizenship by operation of law, the majority in CTEB made it clear that it is automatic:
“ 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.
 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.” (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:
“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.” (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  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.” (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.
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)).” (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.
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  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.” (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.