Dual Nationality: The Queen’s Malaysians

Continuing his series on what we know or think we know about our Constitution, Andrew Yong looks at the question of dual nationality and the British connection.

Most of us Malaysians have some idea that the Malaysian Constitution prohibits dual nationality. After all, we are all taught in SPM History that the Reid Commission’s proposal that dual nationality be freely permitted was rejected by UMNO and its Alliance partners when the Merdeka Constitution was finalised.

But what few people know is that on this issue, the final result was actually a compromise between UMNO and the British Government.

Unlike the Malay States, which were nominally sovereign states under the “protection” of the British Crown, the Settlements of Penang and Malacca (like Singapore, North Borneo and Sarawak) were British sovereign territory. Anyone born there was, in law, as British as someone born in London. In the run-up to Merdeka, the British Government was keen to reassure the “Queen’s Chinese” — English-educated Straits Chinese — and other groups in the Settlements that they had nothing to fear by joining an independent Malaya.

As late as 1956, there were even internal discussions about whether Penang and Malacca could remain at least nominally part of Her Majesty’s dominions, with governors appointed by the Agong in the name of the Queen.

So it was that after 31 August 1957, when the inhabitants of Penang and Malacca became citizens of independent Malaya, as part of the compromise they continued — uniquely among former British colonial subjects — to remain citizens of the United Kingdom and Colonies (CUKCs). By contrast, when Singapore, North Borneo and Sarawak joined Malaysia, only those tied by blood or birth to the UK or remaining colonies were allowed to retain CUKC status.

The compromise reflected in Article 24 of the Constitution was that while Malayan CUKCs would not be required to renounce their UK citizenship in order to remain Federal citizens, they would stand to lose their Malayan citizenship if they applied for the citizenship of another country or claimed any rights exclusively available to citizens of that country and not to other Commonwealth citizens. This was specifically designed to preserve the rights of existing CUKCs, since UK law did not at the time distinguish in any way between CUKCs and the citizens of independent Commonwealth countries.

In 1962, after the UK first started to impose immigration controls on Commonwealth citizens, the Federal Constitution was amended to allow the Government to revoke the citizenship of any person who applied for a British passport (or the passport of any other country). But even without British passports, CUKCs and their offspring who became permanent residents by living in the UK for five years before 1 January 1983 were automatically exempt from UK immigration control. They, and any offspring born after 31 December 1982 are now classed as “British citizens,” and can obtain a certificate of entitlement to the right of abode in their Malaysian passports which entitles them to pass freely through UK immigration control. Right of abode, like permanent residency, is an immigration status enjoyed not just by British citizens but also by certain other Commonwealth citizens, and does not therefore fall under Article 24.

All other CUKCs who did not acquire the right of abode before that date are are now classified as “British Overseas citizens” (BOCs), and generally have no right to live and work in the UK. The Home Office estimates that there are still around 1.3 million Malaysians of all races, mainly of Penang/Malaccan origin, who hold British Overseas citizenship. Unfortunately, a recent phenomenon, encouraged perhaps by incompetent and unscrupulous English immigration lawyers, has been for some BOCs to make themselves effectively stateless by applying for BOC passports and renouncing their Malaysian citizenship, thereby gaining a British passport but losing the right to live anywhere.

The flowchart below should make the situation more clear for any Malaysian of Penang/Malaccan origin who is interested in this complex issue:

Andrew is a Penangite and a non-practising solicitor of the senior courts of England & Wales. There is no such thing as free legal advice, and any information you gain from this article is worth as much as you paid for it.