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THE Constitution of the Republic of Singapore provides for four types of citizenship, one of which is citizenship by descent. It is citizenship by operation of law in our Federal Constitution.
Before May 15, 2004, the Singapore constitutional provision – Article 122 – read as follows:
“122. Citizenship by descent
(1) A person born outside Singapore after September 16, 1963, shall be a citizen of Singapore by descent if at the time of the birth his father is a citizen of Singapore, by birth or by registration:
Provided that such person shall not be a citizen of Singapore by descent unless his birth is registered in the prescribed manner at the Registry of Citizens or at a diplomatic or consular mission of Singapore within one year of its occurrence or, with the permission of the government, later:
And provided further that where such person is born of a father who is a citizen of Singapore by registration at the time of the birth, he would not acquire the citizenship of that country in which he was born by reason of his birth in that country.”
Accordingly, a child was entitled to citizenship by descent only when the father was a Singaporean who was a citizen by birth or registration.
It did not apply when the father was a Singapore citizen by descent, or when it was the mother who was a Singaporean.
Importantly, Singaporean mothers could only pass on citizenship by registration to their foreign-born children, and citizenship by registration was not conferred as a matter of right.
In short, Singaporean mothers did not stand on the same legal footing as Singaporean fathers.
The corresponding provision in the Federal Constitution is in the Second Schedule, Part II. Clause 1 reads as follows:
“Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:
(a) every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation;
(b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a state.”
By the above provision, Malaysian mothers similarly can only pass on citizenship by registration to their foreign-born children under Article 15(2) of the Federal Constitution.
Citizenship by registration is not conferred as a matter of right as the word used in the provision is “may” and not “shall”.
That is why the decision of high court judge Akhtar Tahir has been much applauded. He ruled that children born overseas to Malaysian mothers are entitled to citizenship by operation of law.
He said, among others, that the word “father” in Clause 1(b) above includes “mother”. He gave a “harmonious” reading of the constitutional provisions.