Restrictive Citizenship Policies
Within the Commonwealth
Walter W. Toxey *
Introduction
Citizenship laws of the Commonwealth member countries provide
evidence of two contrary developments in the last two decades:
liberalization by the United Kingdom and restrictiveness by the
former colonial areas. That there is racial exclusiveness in the
older members, Canada, Australia, and New Zealand, is well known.’
That the newer Afro-Asian members have established highly
restrictive citizenship laws is less widely recognized. Since 1948
the citizenship law of the United Kingdom has become a model of
liberality.2 Among other lenient provisions
it permits multiple
nationality in that the acquisition of another nationality by adult
Britons does not cause forfeiture of British nationality.3 Moreover,
British law contains the “common clause” recognizing citizens of
other Commonwealth countries (and also those of the Republic of
Ireland) as British subjects and not aliens in the United Kingdom. 4
British subjects, or Commonwealth citizens, may acquire United
Kingdom citizenship by the relatively simple procedure of registration
rather than naturalization, which is required of aliens seeking British
nationality. 5
The rapid expansion of the Commonwealth since the end of
the Second World War has produced a multi-racial association
whose member states exhibit varying degrees of development. As
each new member has achieved independence, it has tended to assert
its individuality by modifying various institutions borrowed from
the United Kingdom. For example, the relative positions of the
* Department of Government, Louisiana State University in New Orleans.
1 As in American law before 1965, this has been secured by restrictive
immigration policies.
2 The British Nationality Act, 1948 (11 & 12 Geo. 6 c. 56) as amended.
3 Sect. 19. Amplified in Regulation No. 11, Nationality Regulations, 1948.
4 Sect. 1. Under the provisions of the Ireland Act, 1949 (12, 13 & 14 Geo. 6 c.
41), the Republic of Ireland is not a “foreign country” in the eyes of United
Kingdom citizenship laws. Also see Report of the Royal Commission on Population.
Cmd. 7695, 1950.
5 Sect. 6. Broad ministerial discretion to waive registration requirements is
granted in Sect. 3, British Nationality Act, 1958 (6 & 7 Eliz. 2 c. 10).
No). 3]
RESTRICTIVE CITIZENSHIP POLICIES
executive and the legislature have been considerably changed
in
comparison with the British model. Such modifications have included
a higher degree of executive authority at the center and corres-
pondingly a lower degree of parliamentary power. When a former
colony becomes free of outside control, it also typically develops
a different attitude toward the British two-party system. The
position of the Opposition
is considerably circumscribed. In like
manner the independence of the courts and the basic civil liberties
have been more restricted in the newer member countries.6 Another
frequent modification of the British model after independence is
the new country’s treatment of nationality. In general the citizenship
laws of the newer Commonwealth countries are more restrictive than
those of either the United Kingdom or the original dominions. The
new countries look upon citizenship as a fundamental factor in the
development of a national consciousness. In their efforts to develop
strong national unity, Afro-Asian members of the Commonwealth
have regularly made plural nationality impossible.
The citizenship laws of Ceylon, India, Pakistan, Ghana, and
Malaysia are briefly examined in this study as examples of the
attitude toward nationality of the newer members of the Common-
wealth. Immigration
is not a matter of political importance in
these countries. That is to say, there are no assisted passage programs
or official encouragement to any large-scale entry of foreigners
for permanent residence. The relatively little attention given to
immigration in the laws and regulations of the Afro-Asian members,
however, does follow the trend of immigration laws of the older
member countries to the extent of granting extensive ministerial
discretion in the admission and exclusion of intending immigrants.7
Ceylon
The first of the Afro-Asian member nations to establish a
law following the Second World War was
separate citizenship
6 The Ghana Nationality and Citizenship Act, 1957 (No. 1).
7 (Ceylon) The Indian and Pakistani Residents
(No. 3), Sect. 1. (Colombo: Government Printer, 1949)
(Citizenship) Act, 1949
(India) Rule 4, Citizenship Rules, 1956. Gazette of India Extraordinary,
1956. No. 204. (New Delhi: Government Printer, 1956)
(Pakistan) The Foreigners (Amendment) Act, 1957 (No. 35), Sects. 1-2.
(Karachi: Government Printer, 1957)
(Ghana)
Immigration Regulation No. 4, Ordinances and Acts of Ghana,
1957. (Accra: Government Printer, 1958)
(Malaya) Regulation No. 1, Federation of Malaya Government Gazette,
Vol. II, No. 1, 1949. (Kuala Lumpur: Government Printer, 1949).
McGILL LAW JOURNAL
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Ceylon. Neither the Constitution of 1947 nor the Citizenship Act,
1948,8 makes any reference to the former British law dealing with
nationality. Thus no connection or continuity is preserved with the
earlier law in force in the country. The law omits the “common
clause” altogether, and there is no reference to the Commonwealth.
Citizens of Ceylon are neither British subjects nor Commonwealth
citizens, nor is there any reference to a common status of citizens
of other Commonwealth countries.
There are still other departures from the practices embodied
in the citizenship
laws of the older Commonwealth members.
Ceylonese law makes no provision for ordinary jus soli, or citizenship
by reason of birth within the country. There are no procedures
provided for acquisition of citizenship by naturalization, adoption,
or incorporation of territory. Moreover, the law governing acquisition
of citizenship by descent is very restrictive. Such citizenship
is
possible only by means of a connection with Ceylon extending
through two generations. A person born in the country is a citizen
if his father was a native-born citizen or if the person’s paternal
in Ceylon.9 The
grandfather and great grandfather were born
largest group of residents who are denied Ceylonese citizenship is
composed of Tamil-speaking Indian immigrants and their children.
The law was written to deny citizenship to this group, and there
has been little additional immigration since 1948.10
Section 2 of the Citizenship Act designates two categories of
Ceylonese nationality: citizens by descent and citizens by registration.
The procedure of registration, however, is considerably different
from that found in the citizenship laws of the older member countries.
Registration in Ceylon is ordinarily available only to resident spouses
of citizens by descent and to persons of long residence in the
country whose mothers were citizen’s by descent.’1 A statutory quota
of 25 per year restricts registration of persons unconnected with
Ceylon by means of marriage or descent.12
8 No. 18 of 1948, as amended by No. 40 of 1950 and No. 13 of 1955. The Acts
of Ceylon.
D ibid., Sect. 2.
‘OReport of the Commission on Constitutional Government in Ceylon. Cmd.
6677 (London: HMSO, 1945), pp. 4-7. Also see: Saragarajasingham Namasivayam,
Parliamentary Government in Ceylon, 1948-1958. (Colombo: De Silva and Sons,
1959), pp. 17-22.
“1 Sect. 11.
12 Sect. 12. Also see: Tennekoon, Comr. for Registration of Indian and Pakistani
Residents V. Duraisamy [1958], 2 All E. R. 479, 102 Sol. Jo. 437 (P.C.).
No. 3]
RESTRICTIVE CITIZENSHIP POLICIES
Ceylon specifically prohibits dual nationality on the part of its
citizens.’ 3 Any national who may have acquired some other nationality
involuntarily is required to renounce it when he reaches 2Z years
of age.1 4 Voluntary acquisition of foreign nationality results in
automatic forfeiture of Ceylonese citizenship. Finally a person who
acquires citizenship of Ceylon by registration must formally renounce
all other nationalities immediately.’ 5
The very rigid citizenship provisions are defended on the ground
that Ceylon has a higher standard of living than that of neighboring
countries and therefore attracts immigrants from other Asian nations.
The island produces only about a half of its food requirements,
however, and has a very high birth rate of its own. Another defense
is grounded upon the problem of divided allegiance on the part of
many residents of the country. Ceylon has a large non-indigenous
population of Indian origin having close ties with India. There
are about 800,000 such persons who regard India as their home
and intend to return there. Much of the income of these Indian
residents is routinely sent to their families remaining in India.’ 6
Another group of residents has similar ties to Pakistan.
In 1952 the Ceylon Supreme Court was asked to declare the
Ceylon Citizenship Act of 1948 and the Ceylon
(Parliamentary
Elections) Amendment Act of 1949 17 invalid -in so far as -they
purported to deprive Indians in Ceylon of the franchise. The Supreme
Oouxt upheld the Acts -in Mudanayatke V. Sivagnanasunderam ‘s
and the Judicial Commitee of the Privy Council agreed “, Pillai v.
Mudanayake.’9 The basis of the Ceydonese citizenship law was held
to be a peouliar form of jus sanguinis rather than jus soli. The 1955
amending act makes provision for bilateral agreements granting
reciprocal treatment to citizens of other Commonwealth countries.20
To date, however, none have been negotiated.
The Republic of India stresses reciprocity in its citizenship law.
In the Citizenship Act, 1955,21 there is no mention of the “common
India
‘3 Indian and Pakistani Residents (Citizenship) Act (No. 3 of 1949).
‘4 Sect. 19, Act of 1948.
15 Ibid., Sect. 20.
16 Ivor Jennings, The Constitution of Ceylon. (Bombay: Oxford University
Press, 1953), pp. 37-40.
.7 No. 48 of 1949.
18 (1952) 53 N.L.R. 25.
19 [19533 A.C. 514 (P.C.).
20 The Citizenship..(Amendment) Act, 1955 (No. 13).
McGILL LAW JOURNAL
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clause,” and citizens of other Commonwealth countries are aliens
in the same category with nationals of countries outside the
Commonwealth. While provision is made for citizens of other member
countries to acquire Indian nationality by registration, 22 the conditions
that they must meet are no different from those required in ordinary
naturalization proceedings. 23 Moreover, there is a unique provision
in the Act that no alien is eligible for citizenship in India on
conditions any more favorable than those required of Indian citizens
seeking citizenship in the home country of the applicant.2 4 The
restrictions in Indian citizenship laws have been directed particularly
toward nationals of South Africa and Pakistan. Persons from these
intending permanent residence must
countries who enter India
comply with special permit and registration procedures restricting
travel and employment. 2
5
Except for involuntary acquisition of another citizenship by
descent, Indian law is inimical to plural nationality. There is automatic
forfeiture of Indian nationality if a citizen voluntarily acquires
another citizenship, whether or not the other country involved is a
member of the Commonwealth. – 6 When a person of full age acquires
Indian citizenship, he must renounce all other allegiance.2 7 The
formal renunciation obligation has been extended to women who
acquire their Indian nationality through marriage. 28
Pakistan
The citizenship law of Pakistan 29 is somewhat less restrictive
than those of Ceylon and India, but is more so than those of the
older member countries. It does not contain the “common clause”
recognizing citizens of other Commonwealth countries as either
British subjects or Commonwealth citizens. However, there are
several apparent inconsistencies in the Pakistan law. In spite of
the omission of the “common clause,” for example, every citizen
21 No. 57 of 1955.
22 Sect. 5.
2 3 Sect. 6.
24Sect. 12. Amplified in the Citizenship Rules, 1956; see Footnote 7 above.
(Control) Amendment, 1950.
25Ordinance No. 22, Influx from Pakistan
Gazette of India Extraordinary, 1959, Part II, p. 213.
28 Sect. 9.
27 Sect. 6.
28 Rule 4, Citizenship Rules, 1956. Gazette of India Extraordinary, 1956.
No. 204.
29 The Pakistan Citizenship Act, 1951
(No. 2 of 1951), amended by the
Pakistan Citizenship (Amendment) Act, 1952 (No. 5 of 1952).
No. 3]
RESTRICTIVE CITIZENSHIP POLICIES
499
of Pakistan is declared to have the status of “Commonwealth
citizen.” 3o There is also reference to registration of persons other
than minors and married women which presumably would concern
citizens of other Commonwealth members.3 1 To date no legislation
has been enacted providing the conditions and procedure for such
registration.
In
its opposition to plural citizenship, however, the Pakistan
nationality law is quite clear. Any adult citizen who possesses any
other nationality, whether voluntarily or
involuntarily acquired,
forfeits his Pakistan citizenship unless he formally renounces the
other nationality.32 There is also automatic forfedture of otizenship
if a citizen resides outside Pakistan for seven years. 33
In a recent law designed to restrict the movements of aliens,3 4
the term “foreigner” is defined as a person who is not a citizen of
Pakistan. For this purpose at least, citizens of other Commonwealth
countries are not distinguished from non-Commonwealth country
nationals.
Pakistan imposes many special restrictions on Indian citizens.
They must obtain permits to travel in the country and are prohibited
from entering certain areas. Indian residents also must make financial
reports of all money sent from Pakistan.3 5
Ghana
Ghana closely followed the United Kingdom law in form in
establishing Ghanaian citizenship.3 6 In addition, however, the African
includes the
statute contains several very restrictive parts. It
”common clause,” recognizing the non-alien status of citizens of other
Commonwealth countries.3 7 There is also established a procedure
than naturalization of Commonwealth
for registration
citizens.38 The requirements for citizenship by registration and for
citizenship by naturalization are very similar, however, and the
distinction between alien and Commonwealth citizen applicants tor
rather
30 Sect. 15.
31 Sect. 9. These are the ordinary categories of persons subject to registration
under United Kingdom law.
32 Sect. 14.
33 Sect. 16. Excepted classes are persons in Government service.
34 The Foreigners (Amendment) Act, 1957 (No. 35 of 1957).
3rReport of the Royal Commission on Population. Cmd. 7695.
(London:
HMSO, 1950).
38 The Ghana Nationality and Citizenship Act, 1957 (No. 1 of 1957).
37 Sect. 9. There is no reference to citizens of the Republic of Ireland, however.
88 Sect. 11.
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Ghanaian nationality is slight.39 Applicants in both categories must
declare their willingness to renounce any other nationality.40 Ih
addition the Government may require any citizen to renounce any
other nationality he may have or suffer forfeiture of Ghanaian
citizenship.41
is permitted
Much ministerial discretion
the- Ghanaian
immigration statute.42 There is an extensive category of “prohibited
immigrants” which includes persons designated as “undesirable”
by the Minister of Immigration. Section 5 provides that prohibited
immigrants may be apprehended and placed across the frontier
Without trial by police or immigration officials.
in
Since early 1959 Ghanaian immigration and deportation provisions
have been made increasingly severe by the inclusion of vague
categories of prohibited actions on
immigrants.
Unacceptable political activity, for example,
for
deportation at the discretion of immigration officials. 43
the part of
is a ground
Malaysia
The Federation of Malaysia came into being on September 16,
1963. The original date. for the merger of Malaya, Singapore,
Sarawak, North Borneo, and Brunei was August 91, 1963. 44 Indonesian
opposition to the proposed new state, however, caused a postponement
of formal federation. The Territory of Brunei withdrew from the
plan, and during the early part of September, 1963, the United
Nations’ Malaysia Survey Team. investigated whether or not the
populations of North Borneo and Sarawak were
in favor of
federation. 5 When the Survey Team reported acceptance by the
populations concerned, the Constitution .of Malaya was amended
to include the new states of Singapore, Sarawak, and Sabah (North
Borneo), and the name of the new federation was changed
to
Malaysia. With this change in name, the constitution and laws of
Malaya were continued in force.46
30 Sect. 14.
4o Immigration Regulation No. 4, Ordinances and Acts of Ghana, 1957. (Accra:
Government Printer, 1958).
41 Sect. 16.
42 The Immigration Act, 1957 (No. 15 of 1957).
43 Immigration Regulation No. 1, Ordinances and Acts of Ghana, 1959. (Aqcra:
Government Printer, 1960).
44 The New York Times, Vol. CXII, No. 38,570. August 31, 1963, p. 1.
45 Ibid., Vol. CXIII, No. 38,600. September 30, 1963, p. 5.
46 Ibid., p. 1. Also see the statement of Dr. Mukammad Ghazali, Permanent
Secretary of the Ministry of Foreign Affairs of Malaysia, Ibid., Vol. CXII, No.
38,587. September 17, 1963, pp. 1-3.
No. 3]
RESTRICTIVE CITIZENSHIP POLICIES
After achieving independence in 1947, the Federation of Malaya
established a very restrictive citizenship law.47 One reason for the
considerable change of the colonial law was the apprehension felt
by Malays of domination by the Chinese population of Malaya. It
was, feared that continuation of British colonial citizenship rules
together with the inclusion of Singapore within the federation would
reduce the- Malay population. to economic and political impotence. 48
Rivalry between the ethnic Chinese, who dominate the Malaysian
economy, and, Malays, who control the Federation government,
culminated in the secession of -Singapore in August, -1965.49
Since independence, Malaysian
law has made no distinction
between citizens of Commonwealth countries and those of other
nations. The ordinary method of acquiring Malaysian oitizenship
for both categories of persons is naturalization at the discretion
of the government. -An umnsua ly long residential requirement, ten
years, is prescribed for applicants seeking naturalization.50
Plural citizenship is discouraged. Voluntary acquisition of any
other nationality, including that of another Commonwealth country,
is a ground for discretionary removal of citizenship by the govern-
ment.5 1
Considerable difficulties accompanied the effort to bring about
a Malaysian Federation composed of Malays, Chinese, and Indians
b6cause of deeply-rooted cultural differences.5 2 Therefore, the new
country will for. some years retain a transitional form to permit the
gradual blendiiig of its more advanced and its less advanced elements.
Special arrangements recommended by the Cobbold Commission are
designed to insure gradual unification.5 3 Even before the secession
in 1965, for example, immigration of Chinese immigrants from
Singapore into other parts of the Federation was -not to be permitted
for- an- indefinite period.5 4 –
…..
…-
47 The Constitution of the Federation of Malaya, Parts III and XIII.
48 Federation of Malaya, Summary of Revised Constitutional Proposals, Cmd.
7171, July, 1947. (London: HMSO, 1947), p. 3.
49 The New York Times, Vol. CXIV, No. 39,279. August 9, 1965, p. 1.
50 Constitution, Sect. 19.
51Ibid., Sect. 24. Government Gazette, op. cit., Regulation No. 1.
52 In all of the federated states Chinese residents compose an influential
segment of the population.
53 Report of the Commission of Enquiry, North Borneo and Sarawak 1962. Cmd.
1794. (London: HMSO, 1962).
54 Manchester Guardian Weekly, Vol. 87, No. 6, August 9, 1962, p. 8.
McGILL LAW JOURNAL
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Conclusion
In general the Afro-Asian members of the Commonwealth have
laws. Their regulations
established highly restrictive citizenship
prohibit plural nationality and are designed to prevent large-scale
immigration as well. Forfeiture of citizenship follows the acquisition
of a second nationality. In most of the countries referred to as
examples there are laws restricting immigration and acquisition of
citizenship of nationals of neighboring Commonwealth countries in
particular. Moreover broad ministerial discretion
is used as a
restrictive device in citizenship matters.
While the newer member countries make provision for “reciprocal
arrangements” with other members in citizenship matters, there
are no such agreements actual:y in effect. Except for Ceylon and
Malaysia, there are few prospective immigrants to these countries.
In all of them immigration is insignificant.
The exclusiveness of the laws in the newer member countries
may be attributed in large part to the forces of nationalism. The
yearning for independence has been coupled with a fear of other
countries now that the former colonies are outside direct British
protection. In all the newer members there is also evidence of
lack of confidence. A difference
extreme self-consciousness and
between the newer and older member countries is the absence in
the former of “British” liberality. The idea of the “loyal Opposition”
is not strong, and viewpoints opposed to the government are rarely
tolerated.
Finally, the ties that bind the Afro-Asian members to Britain
do not bind these countries very tightly to each other. Until their
self-confidence is established, the newer members can be expected
to emphasize internal unity and to discourage outside allegiances
and connections.
