KUALA LUMPUR, Dec 22 — The Court of Appeal today unanimously dismissed the Malaysian government’s application to stay or temporarily suspend issuing citizenship-related documents to children born overseas to Malaysian mothers.
The government had asked for a stay of the High Court order recognising that foreign-born children of Malaysian mothers were entitled to citizenship and for citizenship-linked papers to be issued.
It also asked for the temporary postponement until the government’s appeal is heard and decided by the Court of Appeal.
Following a hearing before the Court of Appeal today, however, the government’s stay application was dismissed with no order on legal costs, as the court did not find any special circumstances that would justify a stay.
Court of Appeal judge Datuk Seri Kamaludin Md Said, who chaired the three-judge panel, delivered the brief grounds of decision in rejecting the government’s stay application.
The judge said the panel agreed with the Malaysian mothers’ lawyers that this case does not involve property or money, but was about children.
“We take the view that this is not an ordinary case involving chattel or monetary judgment. It involves the rights of children and these rights have been recognised by the High Court.
“In our view, the circumstances are compelling and the respondents (Malaysian mothers) should not be deprived of the fruits of judgment of the High Court,” he said during online court proceedings.
Kamaludin noted that even if the government succeeds in appealing the High Court order, it would only mean that there would be a cancellation or revocation of the citizenship-related documents to the children and that the Malaysian mothers are aware of such a risk.
“Of course, in the event that the appellants do succeed in reversing the High Court order, this only means there would be retraction of citizenship, this is a risk that respondents are well aware of.
“The possibility of retraction of citizenship is not in itself a special circumstance, and we don’t see how the appeal would be rendered nugatory if the stay is not allowed,” the judge said.
“We are not persuaded there are special circumstances to warrant exercise of this court’s discretion for a stay order on the High Court’s decision,” the judge added.
The judge also said the government could ask the Court of Appeal for an order to “undo” the High Court’s order, if the appeal is later decided in the government’s favour.
The two other judges on the panel today are Datuk S. Nantha Balan and Datuk See Mee Chun.
If any stay had been granted, it would have enabled the Malaysian government to not take any steps to recognise the Malaysian mothers’ children born overseas as Malaysians or to give any documents proving their citizenship, until the Court of Appeal decides on the appeal.
The government’s appeal is scheduled to be heard on March 23, 2022 at the Court of Appeal.
The Court of Appeal’s decision today means the government would have to issue citizenship-related documents upon application to children born overseas to Malaysian mothers that were married to foreigners ― even before the appeal proper is heard in March 2022.
Joshua Andran, one of the lawyers representing the Malaysian mothers and the advocacy group Family Frontiers, said the court’s rejection of the stay accords children born overseas to Malaysian mothers the same rights as their peers born in the country.
“We are extremely encouraged by the Court of Appeal’s decision which acknowledges the dire circumstances and hardship experienced by these children and families.
“We hope that they soon will be able to travel and be reunited with family members, be able to enrol in public schools, be able to access healthcare and other public facilities, etc not as foreigners, but as a Malaysian citizen. Something which they have been deprived of for years,” he told Malay Mail.
What the lawyers argued
Earlier, senior federal counsel Liew Horng Bin gave five reasons why the Court of Appeal should stay the High Court decision.
One of them was the possibility it may cause “further hardship” to Malaysian mothers if the citizenship-related documents ― such as passports and identity cards ― are issued now to their overseas-born children.
Liew argued that if the government subsequently wins its appeal, those citizenship documents would have to be revoked or cancelled.
He insisted that this may complicate matter even as he acknowledged that the government could still cancel the citizenship-related documents.
Liew noted that the High Court’s decision did not cover only the six Malaysian mothers who filed the lawsuit but also applied to other Malaysian mothers with children born overseas.
He claimed that the government had received queries from its embassies overseas who were “inundated” with enquiries on the effect of the High Court judgment.
Liew acknowledged the general rule is that the High Court’s orders are to be respected and carried out even while waiting for an appeal decision, but argued that these five reasons are special circumstances that would justify the Court of Appeal to give a stay.
Liew had also confirmed that the March 2022 appeal hearing date was the earliest date that was available for lawyers from both sides, as well as lawyers of another case that will be heard together.
The Malaysian mothers’ lawyer Datuk Gurdial Singh Nijar however argued that the government has failed to show how there would be “complications” that would amount to special circumstances, pointing out that the government has all the machinery or resources to be able to decide whether or how to revoke or cancel citizenship-related papers that were issued to the children if it later wins the appeal.
“He said the documents will have to be revoked, retracted or cancelled, and revocation process will complicate matters, but that’s not the case, because all things are done digitally,” Gurdial said.
As example, he cited the case of Petaling Jaya MP Maria Chin Abdullah who was digitally blacklisted by Immigration authorities from travelling even though she had a valid passport.
Gurdial also noted that this court case does not involve personal possessions unlike other cases involving stay applications.
“We are dealing with human beings, we are dealing with children who ― for some of them up to 10 years ― have been deprived of all kinds of rights, separated from their mothers, deprived of cohesive family unit, in the pandemic they cannot come back because they are not considered citizens,” he said.
“Do we want to allow and prolong the suffering and disabilities of these children and their mothers?” he asked.
He said that one of the Malaysian mothers had one Malaysian children and two non-Malaysian children ― with all three born overseas ― and that the children has to be left behind with caretakers in Thailand every time the mother returns to Malaysia.
“So in this way you can imagine the distraught caused to children itself, separated from siblings, separated from her and also all other family unit ― grandparents ― living in the country,” he said.
He also showed a table to the Court of Appeal of the ongoing experiences of the six Malaysian mothers in this lawsuit and their overseas-born children with ages ranging from six to 17, and where the mothers’ repeated applications for Malaysian citizenship for their children would take at least two years to be processed.
This is unlike Malaysian fathers married to foreigners, as such fathers’ children born overseas are automatically entitled to citizenship and do not have to make such citizenship applications.
Gurdial also argued that there is no floodgates issue where all other Malaysian mothers with overseas-born children would come to court, pointing out that the effect of the High Court’s decision was merely that it recognised that Malaysian mothers married to foreigners should not be discriminated and should enjoy the same privileges enjoyed by Malaysian fathers married to foreigners of being able to pass on Malaysian citizenship to their children born overseas.
Gurdial said the effect of the High Court’s decision is that Malaysian mothers would simply have to go through the same process and do the same thing that Malaysian fathers have been doing for decades, which is to go to Malaysian embassies abroad to register their child born overseas as Malaysian citizens and to subsequently obtain the citizenship-related documents.
Gurdial noted that this court case may even take up to several years to resolve if it is further appealed to the Federal Court, and noted that the school term for next year will be starting and Malaysian mothers will have to apply for their non-citizen children to be able to be receive schooling and they would also have to pay higher medical costs in the meantime.
Even if there is a risk that the government may win its appeal (which may or may not necessarily be decided on the same day as the March 2022 appeal hearing) and the citizenship documents are later cancelled many months later, Gurdial said a stay should not be granted, as even a brief respite for such children would still be a respite.
“If the (appeal) decision takes six to eight months, can you imagine the child being stranded in some part of the world, being allowed to join his family even for a day, let alone six or eight months?” he said.
Asked by Kamaludin if the Malaysian mothers are prepared to accept the possibility where their children’s citizenship is revoked due to any appeal decision if they are given citizenship recognition at this point in time, Gurdial replied: “Yes, My Lord, because respite from suffering even for a very short amount of time is respite.”
After hearing the arguments by both sides, the Court of Appeal then delivered its decision to reject the government’s stay application.
Other lawyers who represented the Malaysian mothers and Family Frontiers today are Abraham Au and Ngeow Chow Ying, while lawyer Tay Kit Hoo held a watching brief for the Human Rights Commission of Malaysia (Suhakam).
Previously, six affected Malaysian mothers with overseas-born children together with advocacy group Family Frontiers had on September 9, 2021 succeeded in their lawsuit in the High Court against the Malaysian government, the National Registration Department (NRD) director-general and the home minister.
The High Court had on September 9 decided that Malaysian mothers have the same right as Malaysian fathers under the Federal Constitution to pass on citizenship to their children born overseas, and had also ordered the authorities to issue the relevant documentation such as identity cards and passports to such children born to Malaysian mothers.
But the Malaysian government, home minister and the NRD director-general had on September 14 filed an appeal against the High Court’s decision for citizenship-linked documents to be issued to the Malaysian mothers’ overseas-born children.
The High Court had on November 15 rejected the government’s stay application, which then resulted in the Malaysian government then going to the Court of Appeal to ask for a stay of the High Court’s September decision. This stay attempt was dismissed by the Court of Appeal today.