Malaysians who voted in UK: Beware!

An interesting aspect of the recently concluded UK elections was that Malaysians living there could also vote, since they are Commonwealth citizens. Many of them may well have done so. What they probably did not realise was that they could now lose their Malaysian citizenship as a result.

614px-2010UKElectionMap.svg

UK law allows Commonwealth citizens to vote

As Tunku Abidin Muhriz, the President of the recently formed IDEAS think tank, in his “Abiding Times” column in the Sun Our Vote in the UK pointed out:

CITIZENS of Commonwealth countries in the UK have the right to vote in local, parliamentary, and European elections: a right not extended to EU or US citizens. Thus someone from Kota Baru can vote in Newcastle, and on May 6 nearly 50,000 Malaysians – but not Indonesians or Thais – will have the chance to vote in the UK general election.

Tunku Abidin’s article is interesting in that he urged Malaysians to vote, pointing out with prescience that every vote would count, and urged a vote for the Conservative Party partly based on historic events in Britain’s history which impacted on Malaysian politics. Key events were identified where Malaysians interests seemed to suffer when it was Labour government policies that were sought to be implemented on us.

Unlike Malaysia, which disenfranchises eligible voters just because they did not register, the UK sends polling cards to anyone they think is qualified to vote. When I was studying in the UK, I received a polling card because my name was in the register of my student halls of accommodation, my university had sent that register to the local council and the local council saw that I was entitled to vote.

But Malaysian law says vote overseas and you can lose your citizenship

Now, I have the greatest respect for Tunku Abidin, but unfortunately like many Malaysians he seems not to have realised that whilst the UK lawfully allows us to vote there, Malaysia is rather more restrained in how it allows its citizens to exercise their individual freedoms.

For those Malaysian citizens who did vote in the recent elections, beware: the Home Minister now has the power to deprive you of your Malaysian citizenship.

Article 24(2) of the Federal Constitution says this:

(2) If the Federal Government is satisfied that any citizen has voluntarily claimed and exercised in any country outside the Federation any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Federal Government may by order deprive that person of his citizenship.

“Aha!”, I hear you say, “the right to vote in the UK is not a right exclusively to citizens of the UK! So how can I be deprived of my Malaysian citizenship?”

Well, Article 24(3A) provides that:

The exercise of a vote in any political election in a place outside the Federation shall be deemed to be the voluntary claim and exercise of a right available under the law of that place.

It goes on to also give a right to the government to deprive the citizenship of anyone who applies for or uses a foreign passport.

It happened in 1976

Constitutional historians may be able to explain why this change happened. It seems to have been done in 1976, when the words “any country outside the Federation” was inserted in substitution for “any foreign country”. (Article 160 of the Federal Constitution defines “foreign country” as not including “any part of the Commonwealth or the Republic of Ireland”).

In addition, clause 3 of Article 24 was removed which said:

(3) Where provision is in force under the law of any part of the Commonwealth for conferring on citizens of that part of the Commonwealth rights not available to other Commonwealth citizens, Clause (2) shall apply, in relation to those rights, as if that part of the Commonwealth were a foreign country.

Basically, what that meant was that before 1976, you could only lose citizenship if you exercised rights normally associated with a citizen in a “foreign country” other than Ireland or any part of the Commonwealth, or in a Commonwealth country that had restricted those rights to only its own citizens. Then, from 1976, the Commonwealth was treated for these purposes as a foreign country as well, and the special relationship in this context was severed.

Anyway…

Luckily for me I did not vote in those UK elections of 1997 for which I received a polling card. (Sorry Tunku, I would have voted Labour – but then almost everyone did that year!)

But for those Malaysians who did vote in the UK elections just gone by, don’t tell the Home Minister and for heaven’s sake, don’t blog, tweet, update your Facebook or email the whole world about it!

LB: To learn more about the Federal Constitution, go to the Bar Council’s excellent MyConsti campaign website.


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Posts by Shanmuga K

Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 10 May 2010. You can follow any responses to this entry through the RSS 2.0.

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28 Responses to Malaysians who voted in UK: Beware!

  1. hychuah

    and so i'm registered as a voter in the coming UK May general election. same as your condition, being arranged by my school accommodation. so shall i vote?

  2. Xing Ji

    @Shanmuga K: Sorry for exercising necromancy, but seeing as elections are around the corner….

    Any updates on the case you mentioned? Although, it should be noted that voting in the US is reserved exclusively for US citizens…so….

  3. Clement

    There are local elections and Alternative Vote referendum taking place in UK today. If I only exercise my vote on the referendum, can it be construed as political election under Art 24(3A)?

  4. Peter Jesudason

    But who the fuck cares? Who the fuck do you think value the Malaysian citizenship?

  5. Andrew Yong

    I think what Shanmuga meant was that the distinction _in Art 24_ between Commonwealth and foreign countries was abolished in 1976, which is true.

    To understand the background of Art 24 (3) and (3A), one needs to bear in mind that under the Merdeka arrangements, the Straits Chinese and other British subjects were allowed to keep their UK and Malayan dual citizenship on the basis that they would not have any preferential treatment over other Malayan citizens (hence para (3)). This was possible because the UK did not start to distinguish between UK and other Commonwealth citizens until the first Commonwealth Immigrants Act in 1962. Following the entry into force of that Act, the Malaysian Parliament passed Act 14/1962, which added para. (3A) which effectively prevents the use of UK passports.

    Interestingly, Art 24(3A) seems to imply that if a Malaysian is issued an emergency passport by a British embassy overseas (as is the current arrangement where there is no Malaysian representative), he will be liable for termination of citizenship.

  6. R Lazar

    Sorry to disagree with the statement "Then, from 1976, the Commonwealth was treated for these purposes as a foreign country as well, and the special relationship in this context was severed.". The special relationship of the Commonwealth is enshrined in Article 29- "every person who is a citizen of the Federation enjoys by virtue of that citizenship the status of a Commonwealth citizen in common with the citizens of other Commonwealth countries". Britain is one of the few Commonwealth countries to recognise the concept of Commonwelath citizenry. Before the tightening up of immigration laws in the 1970s, there was even the right of entry. Then the UK introduced a term "Patrial" to denote the right of abode but the concept of Commonwealth citizen still continued. Malaysia and other countries within the Commonwealth do not reciprocate this. But Article 29 would be meaningless if the learned author of this article is correct. I am afraid Art. 24 has also been read out of context (quite apart from Art 29).

  7. Thank you for all your comments. I think the issue has been tested in the Courts, but I have not been able to find the decision reported. I once met a government lawyer in Court who said she was there for a challenge by a citizen who had voted in the US who had been deprived of citizenship. She said the dispute was exactly on the effect of the "exclusive" proviso. I've tried to get some information on the outcome of that challenge, and will do an update on this post if I find out anything.

  8. Andrew Yong

    Shanmuga

    I also agree with Roger. Here is something I wrote to some Malaysian friends in London:

    "There are three conditions for depriving a person of citizenship under Art 24 (2): (i) there is a voluntary claim and exercise (ii) of a right available under the law of a place outside the Federation (iii) being a right accorded exclusively to the citizens of that place.

    I always thought that clause (3A) automatically deemed the exercise of a vote in a political election outside the Federation to satisfy all three conditions, but in fact clause (3A) only deems (i) and (ii) to be the case as far as voting is concerned (cf the provision on passports, for which all three factors are deemed satisfied).

    As all Commonwealth citizens lawfully resident in the UK can vote in all elections, (iii) is not satisfied for voting in a UK general election, and Art 24 (2) does not come into play."

  9. shaikh saleem

    Shan,

    Good article. Apt reminder in the current climate. Whilst it is not tested, all it takes is for a person to put it up on facebook or other social networking sites and suddently you have given some form of amunition to the powers that be to use it against you.

    Whilst its debatable whether the articles in question can be used to strip a person of his or her citizenship, at the end of the day it does not really matter. Just like when many can claim straight faced that the constitution provides that we are an Islamic State or that the constitution makes bumiputra malays the 'tuan' of the country who has the right to strip citizenship from all 'pendatangs' or for some half baked idiotic religious authority to proclaim that whatever the Sultan utters automatically becomes law…

  10. Shamsul

    Hmm how interesting. The discussion may be moot as I doubt this will ever get tested in court, but then again who knows. But then the person will be left stateless and in limbo, how nice to treat your fellow countrymen just for a vote..

  11. Patrick

    Probably, based on current situation, many who chose to vote may not bother to return. Come back also die (no citizenship), stay on and "suffer" or challenge oneself in new environment better – maybe more productive that way.

  12. ahmad

    isn't not to vote is also a right?

    ~proud to be malaysian

  13. Larry

    Dear Eric,

    If I am not wrong it is mandatory for the Residents in NZ to vote. In other words it is against the law not to exercise the democratic right to vote when one is required to. Residents include students who hold student permits.

  14. Nadia

    Michelle, fortunately the NHS, free primary and secondary school education and other social benefits in the UK aren't the exclusive rights of is citizens. The NHS, for all its faults, is free for all. Why couldn't our post-colonial legacy be this instead of detentions without trial et. al?

  15. Dear Shan,

    You do realise that this opens up a whole new can of worms. Malaysians who are permanent residents of New Zealand can legally vote. New Zealand PR's have all the rights of citizens EXCEPT that they cannot stand for parliament. Some states in Australia have the same rules as the UK with regards to Commonwealth Citizens.

  16. Michelle Gunaselan

    This is great for general knowledge and heated debates, but what is the reality? That is what interests me, have this sort of cases been put forth? What's happened to the people who voted? Are they now living a joyous life in merry olde England, getting free council housing, pensions and NHS? Because if so, then hey why not vote in the UK elections! :P

  17. Marie Tan Kiak Li

    Dear Shanmuga,

    Quick question: before titling your piece "Malaysians who voted in UK: Beware!" – did you find any precedence for Malaysians having been deprived of their citizenship as a result of Artical 24?

    Many thanks.

  18. Khabir Dhillon

    I have to agree with Roger.

    UK law says "come and vote oh people of the Commonwealth, although you are not citizens of the UK".

    Malaysian law says "if you vote in another country, then you're a citizen of that country and shouldn't be a citizen of this country".

    The phrase "being rights accorded exclusively to its citizens" excludes the UK situation from the Malaysian law formula of "if you vote there, you're a citizen there" simply because the UK grants the vote to non-citizens as well.

    Shan's alternate interpretation is unworkable because if you vote in the UK, it does not mean that you're a citizen. So you'd be stateless if the Home Minister deprives you of your citizenship, just because you voted.

    Of course, our government is famous for choosing unworkable interpretations, so thanks Shan, for the head's up!

  19. Pity this article didn't appear BEFORE the UK elections. Warnings are always a good thing.

  20. Nizam

    Dear Shanmuga,

    Interesting reading.

    First thing in my mind is – how are they going to prove that any Malaysian citizens did vote in the British Election? Based on the electoral list? But that would need British officials to take an oath and testify in Malaysian court, no?

  21. Michael

    but how to enforce something like this?

    I just don't see how the UK would actually cooperate to provide evidence from the polls.

    It would also mean that whoever you voted for would be revealed (maybe not publicly but privy to a certain few) in order to provide evidence that you voted in the UK elections.

  22. RTan

    Dear Shanmuga, Art24(2) reads: "If the Federal Government is satisfied that any citizen has voluntarily claimed and exercised in any country outside the Federation any rights available to him under the law of that country, being rights accorded exclusively to its citizens, the Federal Government may by order deprive that person of his citizenship." So, there are two limbs. Firstly, the Malaysian citizen must have voluntarily claimed and exercised rights available to the citizens in a foreign country. Art 24(3A) is the presumption with regard to voting in a foreign country which is regarded as having claimed and exercised these rights voluntarily. The second limb is these rights must be accorded exclusively to the citizens of the foreign country. In my humble opinion, the 2nd limb has not been satisfied as far as the British elections are concerned.

  23. Goh

    I still think that the crucial point is:" rights accorded exclusively to its citizens".

    In my opinion, Article 24(3A) only defines voting as "the voluntary claim and exercise of a right available under the law of that place" but it only applies when voting in such country is an exclusive right to the citizens in that country. In the UK, the laws there clearly allow citizens from commonwealth countries to vote, as such, it isn't an exclusive right to the UK citizens and Malaysian citizens who voted in the UK election were voting in their capacity as Malaysian citizens (citizens of a commonwealth country). Thus, my view is that such Malaysian citizens were not caught by Article 24(2). The sentences in Article 24(2) and Article 24(3A) are to be read in their entirety.

  24. Thanks Roger. You may be right. The actual text of Article 24(3A) is as follows (punctuation, etc, taken from the government gazette website) and the way it is punctuated leaves some (a lot?) of room for argument. I am not sure, though, what purpose this first part of clause 3A serves if not to achieve the purpose set out in my article.

    "(3A) Without prejudice to the generality of Clause (2), the exercise of a vote in any political election in a place outside the Federation shall be deemed to be the voluntary claim and exercise of a right available under the law of that place; and for the purposes of Clause (2), a person who, after such date as the Yang di-Pertuan Agong may by order appoint* for the purposes of this Clause—

    (a) applies to the authorities of a place outside the Federation for the issue or renewal of a passport; or

    (b) uses a passport issued by such authorities as a travel document,

    shall be deemed voluntarily to claim and exercise a right available under the law of that place, being a right accorded exclusively to the citizens of that place."

  25. 0mars

    wow, thanks for the informative article. The question that is left unanswered is whether or not the law will be upheld seeing as the government is implementing a drive to minimise "brain drain" and the majority of malaysians who could have voted in the UK elections are made up of malaysians with skills and expertise which Malaysia needs.

  26. RTan

    Dear Shan,

    I think Art 24(3A) only deals with the first limb on deprivation of Malaysian citizenship under Art 24. The question here is if Commonwealth citizens may vote in the British elections, then is this right to vote exclusive to British citizens? If not, a Malaysian who votes in British elections as a Commonwealth citizen may not lose his Malaysian citizenship under Art 24?

    RTan

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