Education in the understanding of citizenship is a short-term affair if we are honest and earnest.– MAHATMA GANDHI, INDIAN LAWYER AND FREEDOM FIGHTER
Much discussion and debate abound these days concerning qualifications for election to the Dewan Undangan Negeri (DUN).
Talking points should start with Article 16 of the Constitution of Sarawak which clearly, specifically, unreservedly, unambiguously and unequivocally states that every citizen over the age of 21 years qualifies for election to the DUN provided he or she does not run afoul of disqualifications in Article 17 of the Constitution of Sarawak.
Nothing could be more precise than that intent, content and extent of the caveat to qualifications for election. The word “citizen” in Article 16 of the Constitution of Sarawak must be read with deference to the word “citizen” and the conjunctive “native” in Article 161A(6)(a) of the Federal Constitution.
Parties wishing, waiting, willing and wanting to go to court, or amend the written constitution(s), have to contend with the relevancy of proven and available facts, the written law, and consecrated principles of constitutional law to find a sustainable solution to the welfare of the people sometimes euphemistically labeled “public policy”.
This is where education in the understanding of citizenship becomes crucial with an arsenal full of honesty and strength of character.
Malaysian citizenship for persons resident in Sabah and Sarawak on Malaysia Day is entrenched in Article 16A Federal Constitution (FC) which requires registration with the Federal Government to be certified as a Malaysian citizen.
I would suppose every citizen has done so. This leads us to Article 23(1) which states that any Malaysian citizen above the age of 21 years may renounce his or her citizenship by declaration registered by the Federal Government. Pretty straight-forward.
Next stop is Article 24(2) FC which states that the Federal Government may by order deprive a Malaysian citizen his rights to citizenship if he or she has voluntarily claimed citizenship in any country outside the Federation. Does this need the determination or overview of judicial review?
Article 29(1) FC causes some interpretative discomfort: “In accordance with the position of the Federation within in the Commonwealth, 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.”
Some have come up with the idealistic but mistaken belief that this is a licence to dual citizenship. This is where the duel begins. Nothing could be further from the (constitutional) truth given the fact that a host of nation states including Australia and New Zealand accept dual citizenship, certainly not Malaysia.
Whether the issue of documentary evidence of renunciation of Australian citizenship was raised in court in the recent case is unknown because Australian dual citizenship holders, reportedly, enjoy attractive and appealing retirement benefits in Australia.
“Citizenship is the right to have rights,” said Earl Warren, Chief Justice of the United States Supreme Court, 1953-1969. I don’t suppose he referred to dual citizenship because no one should be granted the right and privilege of swearing allegiance to two sovereigns.
One may also enquire whether the Malaysian Election Commission conducts due diligence as to dual citizenship of any candidate like they would to check their bankruptcy status.
“The only title in our democracy superior to that of President is the title of citizen,” stated Associate Justice Louis D Brandeis of the United States Supreme Court, 1916-1939.
I believe the value of American citizenship was underscored by Justice Brandeis during his pre-World War II days on the apex court, although after 1967 the United States allowed US citizens to acquire dual citizenship with strings attached for sure.
This brings me to Article 17 (Disqualification for membership in the DUN) and Article 19 (Decision as to disqualification) of the Constitution of Sarawak which narrowed the requirements of citizenship for qualification to a seat in its DUN in reverence to its Article 27 — the supreme law of Sarawak.
A purely legislative matter had no business being hauled up to a court of law giving the judiciary encroaching powers frowned upon by the doctrine of the separation of powers cast in stone in Article 72(1) FC which categorically and unequivocally states that “the validity of any proceedings in a Legislative Assembly of any State shall not be questioned in any court.”
A lot of resources could have been secured, saved and salvaged if the High Court decided it had no jurisdiction to hear the case in reverence to Article 72(1) FC.
The key in making a claim, or defending an action when that claim is threatened or challenged is to be guided by the aphorism una est lingua non opponitur dictante conscientia est scriptor — one’s tongue must not be opposed to the dictates of one’s conscience.
All said, done and dusted, the future looks bright for the stars in our constitutional constellation if written constitutions can weather the unnecessary storms of deficient justice, and not be, as Dryden said, “drunk with fumes of popular applause”.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the New Sarawak Tribune.