KUALA LUMPUR, Feb 18 — The Cabinet has agreed to amend the Federal Constitution to enable children born abroad to Malaysian mothers to gain automatic Malaysian citizenship.
The announcement was made in a joint statement early this morning by Home Minister Datuk Seri Saifuddin Nasution Ismail and Law and Institutional Reform Minister Datuk Seri Azalina Othman Said who added that the amendment is expected to be tabled in the current Dewan Rakyat sitting.
They said the Cabinet had agreed yesterday in its meeting to the proposal to amend the Federal Constitution, in particular Section 1(1)(d) and Section 1(1)(e) of Part I in the Second Schedule, and Section 1(b) and Section 1(c) in Part II of the same schedule.
The proposed amendments seek to address the long-standing citizenship dilemma of children born overseas to Malaysian mothers and non-Malaysian fathers, enabling them to become Malaysian citizens by operation of law, meaning automatically without having to apply to be one personally as is the current situation.
“The proposed amendment to the Federal Constitution on this matter is to replace the word ‘whose father’ in Part I and Part II of the Second Schedule with the words ‘at least one of the parents’ to enable Malaysian mothers to receive their just rights according to the Federal Constitution.
“The Federal Constitution (Amendment) Bill 2023 will next be expected to be tabled in this Parliament meeting after fulfilling legal requirements,” the two ministers said.
They said other amendments to citizenship laws, especially Part III of the Federal Constitution, would undergo a more detailed study by a committee formed under the Home Ministry and it would be presented to the Cabinet after the amendment proposal is finalised by taking into account engagement with all stakeholders.
They said this is in line with the unity government's commitment to recognise equality for women and men to remove discrimination against women in Malaysia, overcome weaknesses that arise in citizenship provisions, and to solve the high backlog of cases for affected Malaysian women who have to apply for their children's citizenship through registration in a process that takes too long and was unreasonable, and to give a clear definition and avoid providing a definition different from the court's.
“The effect of today's decision is that children born overseas before or after Malaysia Day where at least one of their parents are Malaysians have the right to be citizens by operation of law according to Article 14(1) of the Federal Constitution,” they said, referring to Malaysia's formation on September 16, 1963 as Malaysia Day.
The move is seen as an effort by the government under Prime Minister Datuk Seri Anwar Ibrahim to update Malaysia’s laws which affect gender equality and children's rights.
The Federal Constitution currently only provides automatic citizenship for children born overseas to Malaysian fathers, while Malaysian mothers are required to apply for their overseas-born children to be registered as Malaysian citizens with no guarantee of success.
The only difference for such overseas-born children is whether their Malaysian parent is a father or mother.
This is despite an amendment to Article 8(2) of the Federal Constitution in September 2001 to stop gender discrimination.
Thousands of Malaysian mothers have experienced waiting for several years to even get a reply from the government on whether their children born abroad can be registered as Malaysians, only to be rejected without being given any reason.
They can only repeat the application process under Article 15(2) of the Federal Constitution until the child hits the age limit of 21 years old.
Based on the Home Ministry’s November 29, 2021 reply in the Dewan Rakyat, there were 6,296 Article 15(2) applications from Malaysian mothers for their overseas-born children to be recognised as Malaysian citizens from 2010 to October 11, 2021.
During that nearly 12-year period, the majority (43.28 per cent or 2,725 applications) were recorded as still being processed, while 35.59 per cent or 2,241 applications were rejected, with only 15.1 per cent or 951 of the 6,296 citizenship applications approved, while around six per cent or 379 applications were cancelled.
Six Malaysian mothers and advocacy group Family Frontiers on December 18, 2020 launched a legal challenge against the discrimination against women in the current citizenship laws in the Federal Constitution which were depriving their overseas-born children of automatic Malaysian citizenship.
The Malaysian mothers and Family Frontiers on September 9, 2021 succeeded at the High Court which ruled that their overseas-born children are also entitled to Malaysian citizenship, but the Malaysian government on August 5, 2022 won its appeal in a 2-1 decision at the Court of Appeal.
On December 14, 2022, the Federal Court allowed the Malaysian mothers and Family Frontiers to proceed to have their appeal heard.
Abraham Au, one of the lawyers in the case, told Malay Mail today that their appeal is set to come up for case management on March 15 at the Federal Court.
Amendments to the Federal Constitution would require support from two-thirds of lawmakers in Parliament, and would have to go through the process of being voted through in the Dewan Rakyat and Dewan Negara and receiving royal assent and being gazetted before taking effect as law.
The Dewan Rakyat's current meeting is from February 13 to March 30, with most days to be taken up by debates on the King's royal address and on the Budget 2023 due to be retabled on February 24.
Only March 29 and March 30 have been scheduled for the tabling of other Bills or proposed laws and other government matters.
For the proposed changes to the Federal Constitution to become law, there would also need to be approval from lawmakers in the Dewan Negara, which will be sitting next from March 21 to April 6.
Most of the days are scheduled for debates on the King's royal address and the Budget, with April 6 scheduled for Bills and other government matters.