On 24.8.2021, the High Court had the opportunity to consider whether the Malaysian Federal Constitution discriminates against Malaysian mothers by disentitling them from passing down their Malaysian citizenship to their children born overseas. Our Jasmine Wong held a watching brief of the hearing on 24.8.2021 and the decision by the High Court on 9.9.2021.
The 1st Plaintiff is the President and Office-Bearer of Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers), a not-for-profit organisation that works on the advocacy for equal citizenship as well as the welfare of Malaysian binational families. The 2nd to 7th Plaintiffs are Malaysian mothers who are married to foreign spouses and whose children were born overseas.
The children of the 2nd to 7th Plaintiffs were registered as non-citizens of Malaysia as a result of Part II Sections 1(b) and (c) of the Second Schedule of the Federal Constitution (“Section 1(b) and Section 1(c) Second Schedule FC”).
Sections 1(b) and (c) Second Schedule FC reads as follows:-
Part II Second Schedule
1. Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:
(b) 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
(c) every person born outside the Federation whose father is at the time of the birth a citizen and whose birth is, within one year of its occurrence or within such longer period as the Federal Government may in any particular case allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang diPertuan Agong, registered with the Federal Government
The Plaintiffs collectively commenced a suit in the Kuala Lumpur High Court against the Government of Malaysia, the Minister of Home Affairs and the Director General of the National Registration Department of Malaysia for, among others, the following:
1. A declaration that Sections 1(b) and 1(c) Second Schedule FC are discriminatory and in violation of Article 8 of the Federal Constitution in that the provisions confer citizenship by operation of law on a child born outside the Federation whose father’s citizenship status, but not the mother;
2. A declaration that Sections 1(b) and 1(c) Second Schedule FC should be read harmoniously with Article 8 FC to include the mother of a child born outside the Federation in the circumstances as stated in Sections 1(b) and 1(c) Second Schedule FC; and
3. A declaration that the mother of a child born outside the Federation in the circumstances as stated in Sections 1(b) and 1(c) Second Schedule FC has a legitimate expectation that the Government would abide by its international obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC) and interpret Sections 1(b) and 1(c) Second Schedule FC in accordance with CEDAW and CRC.
The declarations were sought in line with the principle of equality in Article 8 of the Federal Constitution as follows:-
Part II Fundamental Liberties
(1) All persons are equal before the law and entitled to the equal protection of the law.
(2) Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment. …
On 9.9.2021, the High Court Judge, YA Haji Akhtar bin Tahir, orally delivered his Lordship’s decision during the virtual hearing held via Zoom. The learned High Court Judge recognised that the provisions in the Federal Constitution are discriminatory and that the “discrimination is apparent”. Notwithstanding the High Court’s direction during a previous hearing, the High Court noted that the Government had failed to justify the discrimination in Sections 1(b) and 1(c) Second Schedule FC in their affidavits.
The High Court further recognised that the right to citizenship is a fundamental liberty. The provisions in the Federal Constitution must be interpreted harmoniously and purposively to prevent any provisions from being nugatory. As such, Sections 1(b) and 1(c) must be interpreted to reflect equality before the law as provided for in Article 8 FC. In doing so, the High Court held that the word “father” in Sections 1(b) and 1(c) Second Schedule FC shall be interpreted harmoniously to include “mother”. The High Court effectively ruled that children born overseas to Malaysian mothers are citizens by operation of law under Sections 1(b) and 1(c) Second Schedule FC.
Prior to the High Court decision, Malaysia was one of 25 countries that denied women the right to confer nationality on their children on an equal basis with men. We at MahWengKwai & Associates, therefore welcome the High Court decision which recognises the equal right of Malaysian mothers in conferring citizenship to their children born overseas. By interpreting Sections 1(b) and 1(c) Second Schedule FC harmoniously with the principle of gender equality in Article 8(2) FC, Malaysian mothers are put on equal footing as their male counterparts.
We note that the High Court decision was welcomed by several government ministers such as de facto law minister Datuk Seri Wan Junaidi Tuanku Jaafar who described the decision as illuminating (See: Law minister lauds KL High Court’s decision on automatic citizenship for children born to Malaysian mothers abroad). The Women, Family and Community Development Minister Datuk Seri Rina binti Mohd Harun further described the decision as “a ray of home” for Malaysian women and said that it reflected the government’s commitment to creating equality for women (See: Citizenship ruling ‘a ray of hope’ for women – Rina).
However, contrary to the positive responses from these ministers, the Government on 13.9.2021 filed its Notice to appeal to the Court of Appeal to challenge the High Court decision. (See: AG seeks to overturn citizenship ruling for overseas-born children)
By Jasmine Wong
Note: This article does not constitute legal advice to any specific case. The facts and circumstances of each and every case will differ and therefore will require specific legal advice. Feel free to contact us for complimentary legal consultation.