High Court rules that children born to Malaysian mothers abroad should automatically be conferred citizenships

Members of Family Frontiers hold up placards demanding equal citizenship rights for Malaysians at the Kuala Lumpur High Court April 27, 2021. — Picture by Hari Anggara
Members of Family Frontiers hold up placards demanding equal citizenship rights for Malaysians at the Kuala Lumpur High Court April 27, 2021. — Picture by Hari Anggara

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KUALA LUMPUR, Sept 9 — The High Court here today has ruled that children born overseas to Malaysian mothers with foreign spouses should be automatically conferred Malaysian citizenship.

A statement by the Association of Family Support and Welfare Selangor & KL (Family Frontiers) announced the ruling made by judge Datuk Akhtar Tahir today in the case where the government stood as the defendant.

Akhtar ruled that Article 14(1)(b) together with the Second Schedule, Part II, Section 1(b) of the Federal Constitution relating to citizenship rights, must be read in harmony with Article 8(2) of the Federal Constitution which prohibits gender-based discrimination.

“High Court judge Datuk Akhtar Tahir announced that the word ‘father’ must therefore be read to include mothers and that their children are entitled to citizenship by operation of law.

“The High Court judge emphasised that the Courts are empowered to interpret the law to uphold the spirit of the Federal Constitution and ensure justice.

“He added that the case does not seek to change policy but rather to apply existing law in a way that will find a remedy for the grievance of the plaintiffs,” read Family Frontiers’ statement detailing today’s judgment.

Section 1(b), Part II of the Second Schedule in the Federal Constitution states that anyone born outside the country whose father is a Malaysian citizen are citizens by default by operation of the law.

Akhtar’s ruling today effectively interprets the title “father” as interchangeable between either parent.

The High Court judge did point out during the initial application hearing in May that provisions under Section 1(a) of the same Part and Schedule of the constitution refers to the newborn’s parents as a qualifier to obtain citizenship, as opposed to only Section 1(b)’s sole paternal reference.

Today’s verdict was held virtually via Zoom teleconferencing earlier this morning, and a full written judgment of Akhtar’s decision is expected to be released in the coming days.

“The grievances of the plaintiffs are real the discrimination is apparent,” read an excerpt of Akhtar’s verdict today, as quoted by Family Frontiers.

This effectively means Malaysian mothers will, by default, confer their Malaysian citizenship to their children, on an equal basis with what is currently afforded only to Malaysian men, in what could be a landmark decision.

Today’s ruling will stand and become a guiding judgment if the government decides to yield and not appeal Akhtar’s decision, but in usual circumstances, appeals will most likely be filed.

The decision will then have to face the test of the Appellate and Federal Court’s interpretation before it becomes a landmark judgment.

Lead counsel Datuk Gurdial Singh Nijar, through Family Frontiers’ statement, said the decision “fulfils the intention of Parliament when they amended Article 8 of the Federal Constitution in 2001.”

“To guarantee that there will be no discrimination against women and it also preserves the family structure so that children born overseas to Malaysian mothers are citizens by operation of law,” Gurdial said in the statement of Parliament’s intentions.

Another lawyer on the case, Joshua Andran, said the judge’s interpretation of the Constitution was made in a manner that gave meaning to today’s ideals, saying it was an “illuminating” and welcomed ruling.

“Mothers, and women as a whole, have been owed this for nearly 20 years and today they have been honoured not just by words and gestures but in pragmatic terms.

“In this day and age, discrimination against women, especially in such a fundamental issue such as citizenship, cannot be allowed to continue and this decision represents Malaysia’s effort to be counted amongst those who promote true equality between Malaysian men and women,” said Andran.

Abraham Au, also on the legal team, said: “The court has embarked on yet another massive breakthrough in terms of the interpretation of the Constitution. The last one being Indira Gandhi where the court has looked beyond the expressed wording of a particular law to fulfil the aspirations and changing ideals of today’s society as well as to meet the criteria that all citizens, regardless of gender, must be treated equally.”

Family Frontiers president Suri Kempe, in expressing her delight with the ruling, said the judgment is a huge relief not just for the plaintiffs, but for all Malaysian mothers suffering a similar fate.

“This judgment recognises Malaysian women’s equality, and marks one step forward to a more egalitarian and just Malaysia,” she said.

Today’s decision comes following a hearing on the merits of the case that was held on August 24, following two previous failed attempts by the government to strike out the lawsuit.

Both times at the High Court and Court of Appeal, the government’s stand that the case filed by Family Frontiers was “scandalous, frivolous and vexatious”, and an “abuse of the court process” was dismissed by the sitting judges.

On December 18, 2020, Family Frontiers and six other Malaysian women filed the lawsuit via an originating summons, seeking six specific court orders including declarations that Section 1(b) and Section 1(c) are discriminatory and in violation of the Federal Constitution’s Article 8 which disallows gender discrimination in any law against Malaysian citizens.

They had also sought for a declaration that Section 1(b) and Section 1(c) be read harmoniously with Article 8(2) to include Malaysian mothers as a condition for children born abroad to be given automatic Malaysian citizenship.

Currently, Malaysian mothers who are married to foreigners have to apply for their children born abroad to have Malaysian citizenship, a process that is said to typically take years before the Malaysian government responds and with no guarantee that the child would become a citizen as the government can reject such applications.

In comparison, Malaysian fathers would be able to confer their citizenship to children who are born abroad, which means they are automatically recognised as citizens and do not have to go through the same arduous process of applying for citizenship.

Among other things, the Malaysian mothers in this lawsuit are also seeking a court order for all relevant government agencies including the National Registration Department, Immigration Department and Malaysian embassies to issue citizenship documents (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.

The six Malaysian mothers are Myra Eliza Mohd Danil, Adlyn Adam Teoh, Choong Wai Li, Ng Mei Mei as well as two others whose names are withheld for privacy purposes.

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