Recently, the Court of Appeal had reversed the High Court’s decision in Suraini Kempe (Presiden dan pemegang jawatan Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala lumpur (Malaysian Frontiers)) & Ors v Kerajaan Malaysia & Ors. This has been viewed as a blow to the efforts made by Malaysian mothers who are fighting for equal citizenship rights. So, what led to this decision? We would first need to take a look at the case in the High Court.
The Case in the High Court
The plaintiffs, in this case, sought a Declaration of Court that children born out of the Federation to mothers who are Malaysian citizens to be conferred citizenship by the operation of law. The provision of the law applicable to citizenship of the children born out of the Federation is contained in Article 14(1)(b) read together with the 2nd Schedule, in section 1(c) of Part II of the Federal Constitution (“FC”). The Plaintiffs contended that said provision is discriminatory towards mothers who are Malaysian citizens whose children are born out of the Federation because the provision only confers citizenship to children born out of the Federation to fathers who are Malaysian citizens. The plaintiffs thus requested the Court to interpret Article 14 to be read harmoniously with Article 8 of the FC which guarantees the fundamental rights of equality to all persons before the law.
The High Court subsequently ruled in favour of the plaintiffs and the Court thus made the following Declaration:
- The word father in Article 14 includes the mother and therefore the children of the Plaintiffs and all other women who are faced with similar situations are entitled to citizenship by operation of law if all the procedures are similar to those followed by the father are adhered to and;
- All the authorities are directed to issue the relevant documentation to effectuate the declaration of the Court.
The reason for this decision is as seen in the judge’s (Akhtar Tahir J) judgment whereby after referring to Federal Court cases like Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd, he held that Article 14 must be read harmoniously and purposively so as to infer that the term “father” in said Article must include “mother”. He also held that Article 14 must be reflective of Article 8 as it is a fundamental liberty and non-compliance with fundamental liberties will lead to anarchy and dissatisfaction amongst members of the society.
An appeal was filed against the decision of the High Court whereby the Government argued that the judge had erred in deciding that Article 8 also applied to citizenship sought by Malaysian mothers whose children are born overseas. The Government referred to a recent Federal Court judgment whereby Article 8 cannot be amended. This means that the Article 8(2) amendment in 2001 with the insertion of “gender” is invalid. Thus, the entire case of the Malaysian mothers seeking to pass on citizenship to their children born abroad would collapse if the amendment is invalid.
It was also argued that citizenship is a basic feature to the extent that Parliament cannot amend it, even to improve it. Besides, it was argued that if improvements were to be made to the FC, it was for the Parliament to make said improvements, not the courts as it does not have the constitutional mandate to do so.
The Decision of the Court of Appeal
The Court of Appeal, in a 2-1 majority decision, ruled in favour of the Government wherein children born overseas to Malaysian women who are married to foreign spouses are not entitled by operation of law to be Malaysian citizens. In reversing the High Court ruling, Justice Kamaludin said the word “father” in Section 1(b) and 1(c) of the Second Schedule, Part II of the Federal Constitution meant the biological father and cannot be extended to include the mother or parents. Besides, he stated that only the Parliament can rewrite the Constitution, not the court. The court cannot (at) its own whims and fancies change the Constitution. As such, the government’s appeal was allowed with no order as to cost while the High Court decision was set aside.
It should be noted that according to the Court of Appeal, the status quo should be maintained for the overseas-born children of the six Malaysian mothers who had obtained citizenship papers, pending disposal of their appeal to the Federal Court. Meanwhile, for the other Malaysian mothers who are not part of the lawsuit and who have also applied for their overseas-born children to be given citizenship documents by the NRD, the court held that their applications should not be rejected but should instead be frozen.
Post Court of Appeal Ruling
This case has brought attention to the inequality faced by Malaysian mothers who seek to have their children be made citizens of Malaysia. This has resulted in pressure from both the public and certain Members of Parliament alike towards the Government, calling for the amendment of the Constitution to allow Malaysian mothers to confer citizenship to their foreign-born children by operation of law.
Gender discrimination needs to come to an end. As such, the government should heed the calls for change and start taking steps to amend the Constitution so that Malaysian mothers may be granted the right to equal citizenship.