JULY 1 — At common law, there are three judicial rules of statutory interpretation. They are (i) the Literal Rule; (ii) the Golden Rule; and (iii) the Mischief Rule.
According to the Literal Rule, the statute is read by its natural and ordinary meaning of the words, the assumption being that Parliament has said what it means. However, this can lead to absurd outcomes or in other instances, the literal interpretation may appear to be contrary to Parliament’s intentions.
If the Literal Rule yields an absurd outcome, the court will apply the Golden Rule. When the usual meaning of a word causes unjust outcomes, the courts interpret the offending word to reduce the absurdity.
The Golden Rule is applied narrowly where there is more than one meaning of a word; the court may choose the meaning that avoids an absurdity.
Where there is only one meaning but the Literal Rule would lead to an absurd or repugnant situation, the court will modify the meaning of the words or phrases to avoid the absurd result.
If both the Literal Rule and Golden Rule fail to achieve a just result, the court will apply the Mischief Rule to ascertain the wrong (or mischief) that Parliament was trying to remedy and interpret the statute in accordance with Parliament’s intention; in essence the purposive approach to statutory interpretation.
The above approach requires the court to examine the object of the statute in question and to construe the doubtful phrases or words in accordance with that purpose. (See the judgment of Federal Court judge Vernon Ong in Tebin bin Mostapa v Hulba-Danyal bin Balia & Anor [2020])
When Pengerang MP Azalina Othman Said submitted a Private Member’s Bills to the Dewan Rakyat seeking to give Malaysian women the same rights as men to pass on their citizenship to foreign-born children, it was arguably to remedy that wrong or mischief.
In her submission sent on September 15 last year, Azalina, who was then a former law and human rights advisor to Prime Minister Ismail Sabri Yaakob having resigned from the post a month before, outlined the proposed amendments of Part II of the Second Schedule of the Federal Constitution.
She sought to insert the words “or mother” after “father” in Clause (1)(b) and Clause (1)(c) of Part II of the Second Schedule of the Federal Constitution.
If amended, the clauses would read as follows (the amendments in BOLD):
CITIZENSHIP BY OPERATION OF LAW OF PERSONS BORN ON OR AFTER MALAYSIA DAY
1. 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:
(a) ...
(b) every person born outside the Federation whose father or mother 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; and
(c) every person born outside the Federation whose father or mother is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di-Pertuan Agong, registered with the Federal Government; and...
In my comments to the Bill, I said that the message that it sent was clear: the amendments to the Federal Constitution to give Malaysian mothers the same rights as Malaysian fathers to pass on their citizenship to foreign-born children are as simple as inserting two words ― “or mother” ― to each of Clause 1(b) and Clause 1(c) of Part II of the Second Schedule.
That would have remedied the mischief and would have consigned, in the words of eminent constitutional scholar Prof. Shad Saleem Faruqi, who is Tunku Abdul Rahman Chair at Universiti Malaya’s Faculty of Law, “to the dustbin of history the intolerable gender discrimination between Malaysian men and women if their children are born abroad.”
So, it is shocking to read in recent days that there appears to be more in the government’s proposed amendments to the Federal Constitution on citizenship laws.
It is telling that Prof. Shad should say that the proposed amendments “will augment the suffering and deprivation of many helpless, dehumanised and victimised persons and groups, namely: abandoned children, children born out of wedlock (even if the parents then marry), adopted children, children of generational undocumented families and stateless persons and their offspring whose statelessness will spiral down the generations.”
Does the government intend to remedy a mischief or do more mischiefs?
Shouldn’t Azalina, who is now minister in the Prime Minister’s Department (Law and Institutional Reform), stick to her Private Member’s Bill of 2022?
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
