Introduction
Historically, Malaysian mothers have faced significant challenges in obtaining citizenship for their children born abroad. Children born overseas to Malaysian mothers who marry foreign spouses, unlike those born overseas to Malaysian fathers, are not automatically granted citizenship, and the children have to apply for citizenship under Article 15(2) of the Federal Constitution (“FC”).
Current Position
Under current law, if the father of a foreign-born child is a Malaysian, the child automatically becomes a Malaysian citizen by operation of law regardless of who he marries.
According to art 14(1)(b) of the FC, every person born on or after Malaysia Day and having any of the qualifications specified in Part II of the Second Schedule is a citizen by operation of law.
Section 1(b) of Part II of the Second Schedule of the FC provides that 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 is a citizen by operation of law.
A person is also considered a citizen by operation of law under s 1(c) of Part II of the Second Schedule if he is born outside the Federation and his father is a citizen at the time of his birth and his birth is registered at a consulate of the Federation within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, or is registered with the Federal Government if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang di-Pertuan Agong.
Case Illustrating the Current Position
In Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194, the appellant was the legitimate child of a Malaysian mother and an Indian-citizen father. As the appellant was born in India, she was denied Malaysian citizenship even though she formally applied for it under art 15(2) of the FC. The appellant filed an originating summons for declarations that by virtue of her mother’s citizenship, she was a Malaysian citizen by operation of law under art 14(1)(b) read with s 1(b) of Part II of the Second Schedule and that the word ‘father’ in the said s 1(b) should be interpreted to include ‘mother’ or either one of the parents. The Court of Appeal held that the word ‘father’ in s 1(b) of Part II of the Second Schedule meant the biological father and did not mean ‘mother’ or ‘parents’. Since the appellant’s biological father was not a Malaysian citizen, the appellant was not entitled to Malaysian citizenship by operation of law under art 14(1)(b) of the FC read with s 1(b) of Part II of the Second Schedule.
Constitution (Amendment) Bill 2024
In March 2024, the amendments to the FC related to several provisions on citizenship were tabled in the House of Representatives for the first reading by Home Minister Datuk Seri Saifuddin Nasution Ismail. The Bill, known as the Constitution (Amendment) Bill 2024, will enable Malaysian mothers to pass on their Malaysian citizenship to their children born abroad.
The amendment involves the substitution of the words “whose father” with “of whose parents one at least” in ss 1(b) and (c) of Part II of the Second Schedule for the purpose of granting citizenship to overseas-born children of Malaysian mothers.
The Bill also seeks to introduce an entirely new section, namely s 3 into Part II of the Second Schedule, requiring a person who is a citizen under para (b) of s 1 to take an oath (to be known as the “Oath of Renunciation, Loyalty and Allegiance” under another new amendment in the First Schedule) within 48 months after attaining 18 years old. Failure to do so will result in the overseas-born child ceasing to be a Malaysian citizen.
Critics of Constitution (Amendment) Bill 2024
While the proposed amendment is welcomed by many, it fails to address past injustices as it does not have a retroactive effect. The proposed amendment would not apply to children born before its enactment. It would only have a legal effect on children born or who apply for citizenship after the amendments become law. As a result, many overseas-born children of Malaysian mothers will become stateless.
Conclusion
While the Constitution (Amendment) Bill 2024 takes a significant step towards addressing gender discrimination in Malaysian citizenship laws by allowing Malaysian mothers to pass citizenship to their children born abroad, it does not remedy past injustices faced by children born to Malaysian mothers before the enactment of the amendment. Ongoing efforts and potential future amendments will thus be necessary to fully address and rectify the historical inequities experienced by children born to Malaysian mothers abroad.
