Court to decide June 22 if Malaysian mothers can pass on citizenship to overseas-born children, just like Malaysian fathers

• Published date: 23 March 2022
• Publication title: Malay Mail Online

The Court of Appeal will decide on June 22 if Malaysia's citizenship laws can effectively be interpreted to enable Malaysian mothers' overseas-born children to be entitled to Malaysian citizenship as a right, just like the overseas-born children of Malaysian fathers.

Court of Appeal judge Datuk Seri Kamaludin Md Said, who chaired a three-man panel fixed the decision after hearing lengthy arguments stretching more than four hours today.

The other two judges on the panel today are Court of Appeal judge Datuk Azizah Nawawi and Datuk S. Nantha Balan.

Today, the Court of Appeal heard arguments by lawyers in two appeals involving citizenship provisions in Malaysia's Federal Constitution and Malaysian mothers whose overseas-born children were denied the automatic right to Malaysian citizenship.

The first appeal is by the Malaysian government against the High Court's September 2021 decision which recognised that Malaysia's citizenship laws discriminated against women and ruled that Malaysian mothers whose children are born overseas should also be entitled to Malaysian citizenship.

The High Court had ruled in favour of six affected Malaysian mothers with overseas-born children and advocacy group Family Frontiers in their lawsuit against the Malaysian government, the home minister and the National Registration Department director-general.

The second appeal is by Mahisha Sulaiha Abdul Majeed, a woman - born to a Malaysian mother and Indian national father in India - who wanted to be declared a Malaysian citizen but was unsuccessful at the High Court.

Family Frontiers, which had together with six Malaysian mothers won the lawsuit on Thursday last week, said it was 'appalling' that the government had made the move to appeal the court decision. - Picture courtesy of Family Frontiers

Family Frontiers, which had together with six Malaysian mothers won the lawsuit on Thursday last week, said it was 'appalling' that the government had made the move to appeal the court decision. - Picture courtesy of Family Frontiers

What the Malaysian government argued today

The key provisions in the Federal Constitution at the heart of the Court of Appeal hearing today include Article 14(1)(b), which provides that every person born on or after Malaysia was formed in 1963 are 'citizens by operation of law' or entitled to Malaysian citizenship as a right, if they fulfill the conditions in Part II of the Federal Constitution's Second Schedule.

Two of the conditions in Part II of the Second Schedule - Section 1(b) and Section 1(c) - only mention having a Malaysian 'father' as a requirement for overseas-born children to be a Malaysian, while Article 8(2) of the Federal Constitution states that there shall be no gender discrimination against Malaysians in any law.

In the Malaysian government's appeal against automatic citizenship for Malaysian mothers' overseas-born children, senior federal counsel Liew Horng Bin argued that the High Court was wrong to decide that the word 'father' in these citizenship provisions can be interpreted to include 'mother' in order to harmonise it with Article 8(2).

High Court judge Datuk Akhtar Tahir had in September 2021 said the court was not seeking to change the policy or rewrite the law already enacted by the Malaysian government, but that it was merely trying to apply the existing law and policy in a way which would provide a remedy to the affected Malaysian mothers' grievances.

Among other things, Liew argued that the High Court had erred by allegedly having rewritten the Federal Constitution and having allegedly changed the government policy, while also arguing that the High Court was wrong in issuing a mandatory injunction - in the form of directing the Malaysian government to issue citizenship papers to Malaysian mothers' overseas-born children in compliance with the High Court's declaration that they are Malaysian citizens.

Later when asked by judge Nantha Balan if the government would still comply with a High Court's declaration that Malaysian mothers'...