Putrajaya cannot revoke citizenship of Alvin and Ali

Putrajaya must not heed calls to retract the citizenship of fugitives Alvin Tan and Ali Abdul Jalil after having violated the constitution by revoking their passports, lawyers said.

Tan and Ali, who are both abroad seeking asylum, had acquired their citizenship by birth and descent and were thus protected by the Federal Constitution.

Lawyers said the Home Minister could only strip the citizenship of those obtained through registration and naturalisation but even that was a tedious process.

The lawyers said citizenship acquired by birth and descent (termed as being under operation of law) would only come to an end if the holders gave it up after obtaining citizenship of another country.

Lawyer M. Manoharan said Tan's and Ali's rights under the constitution could not be revoked as they were born in Malaysia and at least one of their parents was a Malaysian after Independence.

"Based on their age, one can safely assume that their citizenship is obtained by birth and descent. If they had become citizens by way of registration or naturalisation, the authorities would have revealed it to the public," he told The Malaysian Insider.

Tan is 26 while Ali is 29.

Manoharan, a former Internal Security Act detainee and the current Kota Alam Shah assemblyman, said this in response to an Umno Youth leader who had urged the government to revoke the citizenship of Tan, who became widely-known because of his sex blog, and Ali, an activist.

Umno Youth deputy chief Khairul Azwan Harun had said that drastic action had to be taken against the duo for refusing to return home to face charges under the law.

Ali has been charged with sedition for insulting the Malay royalty while Tan faces charges under the  Sedition Act, Penal Code and the Film Censorship Act for a Facebook post deemed offensive to Muslims as it had a picture of a pork dish as part of a Ramadan greeting.

"They have no respect for the Rukunegara and Malaysia does not need citizens like the two," Khairul Azwan had said on Tuesday.

This would not be the first time a call to strip the citizenship of those critical of the government is made.

Former Bersih 2.0 chairperson and prominent lawyer Datuk Ambiga Sreenevasan has been the target of such demands by conservative Malay rights groups and even former prime minister Tun Dr Mahathir Mohamad.

Manoharan said Malaysia was the motherland for Tan and Ali and the government could not erase that status even if they were wanted back home for trial.

"The two will only lose this right if they acquired citizenship of another country as Malaysia does not recognise Malaysians with dual citizenship," he added.

Lawyer Andrew Khoo, who also echoed Manoharan's view, said the government could not revoke a Malaysian's citizenship even if they sought asylum elsewhere.

"The government cannot revoke citizenship (obtained under operation of law) even if the individual seeks political asylum in another country as a result of being persecuted in the nation he or she was born in," he added.

Lawyers for Liberty executive director Eric Paulsan said the constitution prescribed that a person could also acquire Malaysian citizenship by incorporation of a new territory into the federation.

"All in all, there are four ways to obtain citizenship (operation of law, registration, naturalisation and incorporation of a new territory into the federation) but those who acquired the right by birth and descent enjoy a special right," he said.

Paulsen said the concept of citizenship must encompass all kinds of political beliefs or character.

"No one should be stripped of their right or privileges because he is alleged to be disloyal or unpatriotic," he added.

He said citizenship by registration and naturalisation could be revoked but it was still subject to judicial scrutiny.

"But the overriding principle is that no one should be made a stateless person," he added.

Paulsen said Umno Youth and Perkasa should stop advocating for the withdrawal of citizenship because such calls were highly irresponsible and aimed at playing to the gallery.

Lawyer S.N. Nair said the constitution did provide for the revocation of citizenship of a naturalised or registered citizen.

This could happen if, among other reasons stated in the constitution, the naturalised or registered citizen showed disloyalty to the country, assisted an enemy in war time, or did not register annually his intention to keep his citizenship if he resided outside Malaysia.

"However, notice must first be given to the individual whose citizenship is intended to be revoked.  And there must be an inquiry by a committee who has to prepare a report. The individual could also go to court," he added.

Tan's alleged offence was committed with his then girlfriend Vivian Lee. He fled to the United States to seek political asylum and Lee now will face the court alone.

Ali escaped to Sweden, also to seek political asylum, after facing sedition charges for allegedly insulting the Johor and Selangor royalty on his Facebook page.

On Tuesday, Immigration director-general Datuk Mustafa Ibrahim also announced that the government had revoked the passport of the two but lawyers had questioned the validity of the administrative action.

Relying on a 2009 Federal Court ruling, they said Malaysian citizens had the right to travel with a valid passport and the government could not cancel such documents at its whims and fancies.