KUCHING, Sept 9 — De facto law minister Datuk Seri Wan Junaidi Tuanku Jaafar today said he found the decision by the High Court that children born overseas to Malaysian mothers with foreign spouses should be automatically conferred Malaysian citizenship “illuminating”.
He said the decision introduced sense into the meaning of the non-discriminatory provision of Article 8(2) with the provision of Second Schedule, Part II section 1(b) under Article 14(1)(b) of the Federal Constitution which is discriminatory against women, unless, of course, the meaning of “father” in that section 1(b) also read to mean “mother”.
“If the Second Schedule, Part II section 1(b) is to be read literally the word ‘father’ is defined as a male parent only then it is clearly inconsistent with the provision of Article 8(2) Federal Constitution for discriminatory against ‘gender’ in law,” he said in a statement.
He said he believes that each provision of the Article in the Federal Constitution could not be read in isolation, adding that it must be read together with other related provisions or provisions governing related subject matter.
He stressed equality before the law is a fundamental principle of law in any democratic country.
“The Federal Constitution is the supreme law of the country and each provision ought to be interpreted harmoniously with the other, in order to introduce sense and order into the constitution itself.
“Thus, judges must be brave enough to introduce that sense and harmony,” he said.
Wan Junaidi, who is a lawyer by training, said any discriminatory provision with that fundamental principle ought to be removed by harmonious interpretation.
The Kuala Lumpur High Court earlier today had 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 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.
“He 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 are citizens by default by operation of the law.
Akhtar’s ruling effectively interprets the title “father” as interchangeable between either parent.
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.
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.