Explainer: How the High Court decided Malaysian mothers' overseas-born children can be citizens too

• Published date: 20 October 2021
• Publication title: Malay Mail Online

The High Court had on September 9 made a historic decision to recognise that Malaysian women should have the same right as Malaysian men, under the Federal Constitution, to pass on citizenship automatically to their children born overseas.

So why did the judge make this decision? And what does it mean for children born abroad to Malaysian women who are married to non-Malaysian men?

Here's a summary by Malay Mail, based on the High Court's written judgment and other court documents:

What led to the court case: Automatic right vs application

For decades now, Malaysian women married to foreigners have found that their children born overseas are not automatically allowed to become Malaysian citizens, due to provisions in the Federal Constitution.

By comparison, Malaysian men who are married to foreigners whose children are born abroad automatically become Malaysian citizens, once the child's birth is registered with a Malaysian consulate or the Malaysian government within the required period.

Malaysian women who would like their overseas-born children to have the same nationality as them, have to apply under Article 15(2) of the Federal Constitution.

Under Article 15(2), the Malaysian government 'may' register anyone aged below 21 as a Malaysian citizen, if this person has at least one parent who is Malaysian and if this person's parent or guardian had applied for the citizenship registration.

While it sounds simple, the pathway for these Malaysian mothers' overseas-born children to be recognised as Malaysians actually tends to be a difficult one that could take years and years of waiting and trying, and with no guarantee of success.

Family Frontiers president Suriani Kempe had in court documents said that the Article 15(2) application process - which is the only option such Malaysian mothers can resort to - is 'discretionary, tedious, takes an inordinately prolonged period for processing and the application is often rejected.'

This led to six affected Malaysian mothers together with Family Frontiers filing a lawsuit through an originating summons on December 18, 2020 in the High Court in Kuala Lumpur against the Malaysian government.

The six mothers are Myra Eliza Mohd Danil, Adlyn Adam Teoh, a mother who wishes to be identified only as Devi, Choong Wai Li, Ng Mei Mei and Rekha Sen Mei-Mei.

All six had first tried to apply for their children to be registered as citizens under Article 15(2), but these applications were rejected - with no reasons given.

By the time they finally filed this court case, some of them had been waiting for more than four years without any reply from the government (and still none to this day) on their latest attempts.

The earliest time these mothers had made the first citizenship application for their children was in 2011 or even 2013, which means the journey for some of them had started 10 years ago.

Meanwhile, the clock keeps ticking, as the Article 15(2) pathway has an age limit of 21 years. In the process of waiting, some of the six mothers' children are already in their early teens or having reached half of the age limit. Some may also have siblings who are Malaysian, just because they were born in Malaysia.

Here's a chart showing how lengthy the process can be, based on the six mothers' experience listed in court documents sighted by Malay Mail:

What happened before the case could be heard

The Malaysian government in January 2021 applied to have the entire court case struck out without being heard, but the High Court on May 6, 2021 rejected the government's striking out application.

The High Court judge Datuk Akhtar Tahir instead decided that the lawsuit should be heard on its merits and held that it was not a frivolous case. The judge also allowed the home minister and the National Registration Department's director-general to be added as defendants.

The judge had said the Malaysian government must give reasons to justify the apparent discrimination or distinction in the Federal Constitution's provisions, namely where it states a child born in Malaysia can automatically be a Malaysian if either parent is Malaysian, while mentioning that a child born outside of Malaysia can automatically be a Malaysia if the 'father' is Malaysian.

The Malaysian government failed in its second attempt to have the case struck out when the Court of Appeal dismissed its appeal on August 20, and the High Court on...