Court: Children born overseas can get citizenship by operation of law if father is Malaysian
11 Aug 2022 08:07pm
In his grounds of judgment, Justice Kamaludin said the parliamentary process is a better way of resolving issues involving controversial and complex questions arising out of moral and social dilemma. - Photo: 123RF
Court of Appeal judge Datuk Seri Kamaludin Md Said in his written grounds of judgment of last Friday's appellate court's 2-1 majority decision in disallowing citizenship to children born overseas to Malaysian mothers and foreign fathers, said the word "father" in Section 1(b) of Part II of the Second Schedule of the Federal Constitution refers to father only and is not intended to include the mother.
This means it precluded Malaysian mothers who are married to a non-Malaysian citizen from passing on their citizenship status to their children who were born outside Malaysia.
In the grounds of judgment released today, Justice Kamaludin said It was intended by the framers of the Federal Constitution that citizenship by operation of the law of children born on or after Malaysia Day must follow the status of the father.
"In my view, the court should not question why the law was enacted or whether Parliament had addressed its mind in enacting the law but the court's duty is to interpret the enacted law accordingly," he said.
He said the remedy for Malaysian mothers who are married to foreign spouses to get Malaysian citizenship for their children who were born overseas is provided under Article 15 (2) of the Federal Constitution.
Justice Kamaludin said the mothers' grievances were not against the existing law of Article 15 (2) which provided the remedy for them to apply for citizenship for their children but against the approving authority or the system which is currently in place.
"The system can be improved or changed. I agree this issue needs to be addressed by the relevant authority," he said.
He said it was his view that the High Court was re-writing the law in relation to the grant of citizenship to children born outside Malaysia when it applied the existing law and policy already in force in a manner to find a remedy to the grievances of the mothers by interpreting the word "father" to be read as a mother.
On Friday, the Court of Appeal's 2-1 majority decision by Justice Kamaludin and Justice Datuk Azizah Nawawi allowed the appeal by the government, Home Ministry and National Registration Department (NRD) director-general to reverse the High Court's decision declaring that children born overseas to Malaysian mothers who married foreigners are entitled to citizenship by operation of law. Justice Datuk S. Nantha Balan dissented.
The appeal involved the Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) and six Malaysian women who are married to foreigners who wanted a court order for all relevant government agencies, including the NRD, Immigration Department and Malaysian embassies, to issue documents relating to citizenship (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.
On the same day, the same appellate court panel also dismissed an appeal by a 24-year-old woman Mahisha Sulaiha Abdul Majeed against the High Court's decision in 2020, which rejected her suit filed to seek a declaration that she is entitled to be a Malaysian citizen.
In his grounds of judgment, Justice Kamaludin also said the parliamentary process is a better way of resolving issues involving controversial and complex questions arising out of moral and social dilemma.
He also said Article 14 (1) (b) of the Federal Constitution and section 1 (b) of Part II of the Federal Constitution were not gendered discriminatory against women.
Article 14 (1) (b) states every person born on or after Malaysia Day, fulfilling any of the conditions in Part II of the Second Schedule of the Federal Constitution are a citizen by operation of law while section 1 (b) of Part II of the Second Schedule of Federal Constitution states every person born outside the Federation whose father is at the time of the birth of a citizen, are citizens by operation of law.
In the minority judgment which ruled in favour of the mothers, Justice Nantha Balan said it was untenable for the government to say that there is no discrimination against Malaysian mothers who are unable to pass on their citizenship to their children who were born overseas.
"There is no doubt that Article 14(1) (b) read together with Section 1 (b) of the Second Schedule of the Federal Constitution is totally and inherently discriminatory of the rights of Malaysian mothers whose children were deprived of citizenship by operation of law solely because their spouses are foreigners and because the children were born overseas," he said.
He said the word "father' in Section 1 (b) Part II of the Second Schedule of the Federal Constitution should be read in a non-discriminatory way to include "mother' as by virtue of Article 8 (2) of the Federal Constitution it will be unconstitutional to practice gender discrimination by recognising the blood descent of the father but not that of the mother for purposes of according citizenship to children born overseas.
On Friday, the Court of Appeal panel had also made it clear that the status quo should be maintained for overseas-born children of the six Malaysian mothers who had obtained citizenship, pending disposal of their appeal to the Federal Court. - BERNAMA
