Monday, December 15, 2014

Whose right is it to void citizenship anyway?

8:43AM Dec 15, 2014
By Kua Kia Soong
COMMENT If the citizenships of the two young Malaysians are revoked because of their criticism of the government and the monarchy, it will not be the first time this is done in Malaysia.

Yesterday was the day when Chinese educationists go to the Hokkien cemetery in Kuala Lumpur at dawn to pay respect to the 'Soul of the Malaysian Chinese', Lim Lian Geok. In 1961, Lim Lian Geok was served with a notice to revoke his citizenship.

His famous counsels, R Ramani, appearing together with David Marshall and CN Selvaraj, argued at length on the interpretation of Article 25 of the constitution under which Lim was deprived of his citizenship. I believe their defence of Lim Lian Geok has great relevance to the current cases involving the two young Malaysians.

The notice accused  Lim of having shown himself since 1957 by act and speech to be “disloyal and disaffected towards the Federation of Malaya” by

(i) deliberate misrepresentation and inversion of government education policy in a manner calculated to excite disaffection against the yang di-pertuan agong and the government of the federation; and

(ii) emotional appeals of an extremely communal nature calculated to promote feelings of ill-will and hostility between different races in the Federation likely to cause violence.

Referring to Article 25(1),  Ramani pointed out it stated, “The federal government may by order deprive of the citizenship of any person which is a citizen by registration under Article 17 or a citizen by naturalisation if satisfied that he has shown himself by act or speech to be disloyal or disaffected towards the federation.”

He pointed out that the article only referred to disloyalty to the federation and not to the yang di-pertuan agong or the government.

By the federation was meant the state and not the constituted government or the king. And under a democratic system of government, every citizen had the freedom of speech to criticize the policies of the government and the government, he said, was not made of just the ruling coalition but of every political party in the country.

Loyalty to go'vt a criteria?

He also noted that there was no specific article to denote allegiance to the crown and even ministers, while taking the oath of office before His Majesty, swore their allegiance to the federation.

“The written constitution,”  Ramani said, “is the sovereignty of the people and when we speak of allegiance it is referred to the state - the federation.”

According to the charge, it said disaffected and disaffected, he said, meant disloyalty and disloyalty meant infringement of allegiance to the state. He submitted that merely by making speeches of emotional nature was not the purview of Article 25 of the constitution.

Counsel added: “This is a democratic country, where the question of policy is debated not merely in the legislative chambers but also in public forums and this freedom of speech is guaranteed to every citizen under the constitution. And before a citizen is deprived of that right, he should be told of the reasons and his case heard before a commission of inquiry.

“Under the article, it is required that one must show by his act or speech that he is disloyal or disaffected to the federation and to merely attack the policy of the government, which is not the state, is no ground for revoking the citizenship of anyone.”

After all, counsel said, the policy of the government might not be the policy of the federation. Another government might come into power and scrap the particular policy, he added.

Citizenship a universal right

Unlike Lim Lian Geok, the two young Malaysians had acquired their citizenship by birth and descent and were thus protected by the federal constitution. They would lose their Malaysian citizenship only if they gave it up after obtaining citizenship of another country.

The Malaysian government seems to be taking the cue from the governments in Kuwait and Bahrain which have been stripping nationals of their citizenship simply because they were exercising their right to free speech or other legitimate human rights.

In Britain, the government has proposed legislation enabling it to revoke the citizenship of naturalized Britons suspected of involvement in terrorist activities - even if this makes them stateless.

The House of Commons passed the legislation in January, but in April the House of Lords voted to send it to a joint parliamentary committee for additional scrutiny.

International law strictly limits the circumstances in which loss or deprivation of nationality leading to statelessness can be recognized as serving a legitimate purpose.

Article 15 of the Universal Declaration of Human Rights states that everyone has the right to a nationality and that no-one shall be arbitrarily deprived of their nationality.

Article 12 of the International Covenant on Civil and Political Rights (ICCPR) states that, “No one shall be arbitrarily deprived of the right to enter his own country.”

Clearly, the decision to revoke citizenship should be proportionate, and those affected should have the right to an independent review.

On this Lim Lian Geok Day for mother tongue education, it is the appropriate time for reconciliation by returning Malaysian citizenship to the soul of the Malaysian Chinese.

DR KUA KIA SOONG is Suaram adviser.
~ Malaysiakini

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