SEPTEMBER 9 — Some, without batting an eyelid, would say that my statement above is so irrefragable and is as sure as eggs is eggs. In fact, some may even argue that my statement is very much amiss as a motherly touch transcends even the doorway to heaven – which takes the role of a mother way above that of their paternal counterpart.
However, that is not what my comment today relates to today.
At the end of the 20th century, human beings began to travel beyond the boundaries of states. The horizons of life expanded. Globalisation ensued. People get to know people beyond the limits of territorial jurisdictions. One of the by-products of this massive melting pot is the sacred institution of marriage between a man and a woman. Malaysians, included, have not excluded themselves from the alluring prospects of transboundary union. Malaysian men married foreign women, and had children of their own. The family as a unit nevertheless maintained their allegiance to the Jalur Gemilang. That was the 1950-1960s. Our founding fathers noted this widespread activity. Malaysia would therefore confer citizenship to children born overseas by operation of law — as long as the child pledges loyalty and allegiance to Malaysia, and maintains an attachment to the country. This is the international concept of Jus Sanguinis — as evidently put by Tun Abdul Razak in an erudite speech in 1963.
However, with the gradual liberalisation of the female race across the globe — Malaysia included, Malaysian women have, too, traversed the world. Like men, too, fell in love, out of free will, to foreign men, and have children born overseas. However, the present practice and interpretation of the current laws in Malaysia discriminated against children born overseas to Malaysian women married to foreign husbands.
In gist, the conferment of citizenship on children born overseas is governed in the following manner:
- children born overseas where the father is a Malaysian citizen married to a foreign wife, are entitled to citizenship by operation of law;
- children born overseas where the mother is a Malaysian citizen married to a foreign husband, are not entitled to citizenship by operation of law. Rather, such mothers would be forced to apply under a discretionary process for their children’s citizenship by registration – which the Government holds complete discretionary powers in deciding who is entitled to be conferred citizenship and who isn’t.
Malaysian mothers are forced to wait for years before their children would be recognised as Malaysians – who for all intents and purposes, are residing in Malaysia. Some of the mothers who are later divorced from their husbands are left in a conundrum where they are full citizens of Malaysia but their dependent children are foreigners.
We have also encountered other myriads of situations where the Malaysian mothers have multiple children, the children born IN Malaysia were conferred Malaysian citizenship by operation of law while those born OUTSIDE Malaysia (though they share the same multinational parents) are residing in Malaysia as foreigners. These non-citizen children, despite being brought up and living in Malaysia, perennially suffer from the following difficulties in life:
- They are unable to enroll and/or were refused enrolment in public schools due to her non-citizen status;
- They are being charged substantially more at public establishments including Malaysian public healthcare facilities due to their non-citizen status;
- They and their families endure constant mental and emotional stress caused, amongst others, by fear of being separated from their families and by them being ostracised in social settings; and
- Their predicament has recently been exacerbated by the Covid-19 pandemic, where the Government of Malaysia had shut down all international travels in and out of the country. This results in these mothers being separated from their non-citizen children over an indeterminate period of time.
One might say — just apply for citizenship lah! But more often than not, applications for citizenship for registration would fall on stone-bureaucratic silence. Some children only manage to obtain citizenship after completing their SPM or STPM — ONLY because their father is not a Malaysian. A slight tweak in circumstances would have made all the difference. The mental and emotional distress caused to these mothers — just because mothers are discriminated under the law.
In 2021, 6 brave mothers in like circumstances appointed a conspicuously male-majority legal team (regret to say that) that included, inter alia, Prof Gurdial, Joshua Andran and myself to file a case in court with the hope to end this age-long discrimination. We gladly took on the cajoles.The Government applied to summarily strike out the case on the basis that the claim by these mothers is frivolous and vexatious, and has no chance of success. Their application was dismissed by the High Court and they were instead asked to justify the discrimination by affidavit evidence. They took an easy way out — by suggesting that the word “father” in Part II of the 2nd Schedule to the Federal Constitution is clear: it relates only the masculine gender. Even if there is discrimination, it is expressly permitted by the Constitution. In simpler, they are saying: Just Follow the Law Lah! For completeness, the provision of the law reads as follows:
“Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:
(b) every person born outside the Federation whose FATHER is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State”
However, later, in the Government’s Written Submissions, we were shockingly invited to accept another justification. They referred to an article that traces way back to the Napoleonic Code 1805 which carries the proposition that women cannot be treated the same way as men as women were historically deemed as "property" to their husbands and they haveby conduct “forfeited their citizenships” through marital naturalisationwhen they make a conscious decision to marry a foreign husband. In opposition, we argued in gist that this submission is flawed as it goes beyond the whole idea of Jus Sanguinis and more importantly, the right to equal treatment under the law guaranteed by the all-pervading Article 8 of the Federal Constitution. The Constitution is not trapped in a time warp and must be interpreted in accordance with the changing times in 2021 – not bringing us back to 1805 where women are treated as property to their husbands!
Today on September 9, 2021, Justice Akhtar Tahir agreed with us. His Lordship ruled that the Federal Constitution — a living document — must be interpreted harmonious and purposively. The canons of interpretation to be adopted in the context of a constitution is different from how we usually interpret a contract or a will. We cannot read a constitution literally. What follows? His Lordship then embarked on a ground-breaking journey — akin to that of Justice Zainun Ali’s judicial activism in the famous case of Indira Gandhi — in interpreting the word “FATHER” to also mean “MOTHER”. His Lordship also declared that the only criteria for citizenship is loyalty, allegiance and attachment. There is no reason to doubt that the 6 brave mothers, who filed this present suit out of motherly instinct for the best interest of their children, too, possess these important criteria of a citizen. They, too, must be granted equal protection of the law. His Lordship consequentially ordered that ALL Malaysian mothers (not limited to just the 6 mothers who filed the suit) are entitled to have their children born overseas to be conferred Malaysian citizenship.
In my humble view, the win today is not just a matter of citizenship. It is a clarion call for the Government and all of us that the time has come for us to recognise that gender discrimination must be treated as a thing of the past. We now have a female Chief Justice who holds the realm of authority in the Malaysian Judiciary, which, interestingly, was a subject of reference by the Minister who moved the amendment to Article 8(2) in 2001 to abolish all forms of discrimination against women, consistent with Malaysia’s commitment under the CEDAW. It is a victory for all women, especially our beloved mothers, whom to the world her child is one, but to her; the child is the world. Dedicating this also to my beloved mother, Mdm Fang Mei Lih, whom I have not seen for 9 months since the second outbreak of the pandemic.
Malaysians, we must only move forward, and not backwards.
*Abraham Au acted as counsel for the plaintiffs who sought equal Malaysian citizenship.
**This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.