The Fate of Overseas Born Children: Saya juga Anak Malaysia!

What’s the fuss?

​The Court of Appeal declared on August 5, 2022, by a 2-1 majority that Malaysian citizenship is not automatically granted to children born abroad to Malaysian women who are married to foreigners. Justice Datuk Seri Kamaludin Md Said and Justice Datuk Azizah Nawawi and were in the majority, with Justices Datuk S. Nantha Balan  dissenting.

But Why?
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Previously, on September 9, 2021, the Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) and six Malaysian women married to foreigners with overseas-born children won their High Court case against the three appellants. In overturning the High Court decision, Justice Kamaludin stated that the term "father" in Sections 1(b) and 1(c) of the Second Schedule, Part II of the Federal Constitution referred to the biological father and could not be extended to include the mother or parents.
On the contrary, the High Court in its decision to allow children born overseas to Malaysian mothers married to foreigners to automatically be entitled to citizenship by the operation of law under Article 14(1)(b) of the Federal Constitution had held that the word ‘father’ in Section 1 (b) must be read to include the mother.

Justice Kamaludin however said the word ‘father’ in Article 14(1)(b) and its related provisions in the Second Schedule is clear and unambiguous and cannot be construed to include ‘mother’.

“Only the Parliament can rewrite the Constitution, not the court, to amend the Constitution. The court cannot in its own whim and fancy change the Constitution. Thus, the government’s appeal is allowed with no order as to cost while the High Court decision is set aside,” he said.

Justice Datuk S. Nantha Balan contended that the present legal status of the mother’s bloodline was made to look inferior to the father. In his dissenting opinion, Justice Nantha stated that there is a clear and obvious conflict between Article 8(2) and Article 14(1)(b) and their related provisions of the Federal Constitution, which imply that the bloodline of the mother is inferior to the bloodline of the father. He claimed that Article 14, which granted citizenship to children born outside the federation, was discriminatory and violated the equality provision. He also stated that the denial of citizenship violated international law, to which Malaysia was a signatory.
"This is an indignity to Malaysian mothers and discriminatory to Malaysian mothers who marry foreigners. The court’s theory of constitutional interpretation is to prevent citizenship absurdity that results in discrimination, thus the (Federal Constitution) is to be read harmoniously to prevent discrimination on Malaysian mothers,” he said.

The Stance Previously

Prior to this controversial decision, the High Court had held that the word "father" in Section 1(b) of the Federal Constitution must be read to include the mother in its decision last year that allowed children born overseas to Malaysian mothers married to foreigners to automatically be entitled to citizenship by operation of law under Article 14(1)(b) of the Federal Constitution.

In his decision, Judge Datuk Akhtar Tahir ruled that the term "father" in Article 14(1)(b) of the Federal Constitution must be read in conjunction with Article 8(2) to include mothers, and that their children were entitled to citizenship by operation of law.

Article 8(2) stipulates that 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, while Article 14 concerns citizenship by operation of the law.

 Reaction from the Public
The Human Rights Commission of Malaysia (Suhakam), in response to the contentious decision, expressed dissatisfaction over the Court of Appeal's decision to overturn a High Court judgment permitting mothers to pass on their citizenship to children born abroad. The judgment, according to Suhakam, will have a severe effect on Malaysian mothers as well as their children, especially in terms of providing their basic needs, such as access to healthcare, education, citizenship, and other rights granted to all Malaysian citizens by Malaysian law.
Suhakam claims that the decision does not reflect the government's commitment to the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), as well as its commitment to make sure that domestic legislation should affirm the principles of equality between men and women without any discrimination and to safeguard and uphold children's fundamental rights.

Malaysia's government ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1995 and amended its constitution in 2001 to enshrine the principle of gender equality, but it made a reservation on nationality issues. According to the global rights organisation Equality Now, Malaysia is one of only 28 countries where women are still barred from passing on their nationality to their children on an equal footing with men.

Our Take

For decades, Malaysian mothers have had to rely on Article 15(2) of the constitution, which allows anyone under the age of 21 to apply for citizenship if one parent is Malaysian, to secure citizenship for their children born abroad. However, unlike Article 14(1)(b) for fathers, an application under Article 15(2) is neither automatic nor guaranteed to be successful. Approvals are granted at the discretion of the home ministry.

During a parliamentary session in March, the home minister revealed that only 117 of 4,870 citizenship applications by children born overseas to Malaysian mothers had been approved since 2013, while 1,728 had been rejected and the rest had yet to be decided.
Although the Malaysian government finally amended Article 8(2) of the Federal Constitution to prohibit gender discrimination against Malaysians in any law, and this new protection went into effect on September 28, 2001, the government did not take steps to change the country's citizenship laws to remove gender discrimination against Malaysian women with children born elsewhere.

Instead of being able to use the Article 14(1)(b) method, which allows Malaysian fathers to automatically pass Malaysian citizenship to their overseas-born children if all conditions are met, Malaysian mothers have been forced to rely on the Article 15(2) method for their overseas-born children.

Conversely, under Article 15(2), it is up to the Malaysian government to decide whether to register as a Malaysian citizen any person under the age of 21 who has at least one Malaysian parent, if the person's parent or guardian applies for citizenship registration.
Disclaimer: The article is merely an academic discussion to express the point of view towards the said issue.

Compiled Link: https://linkmix.co/11150524

Written by Secretariat of Current Affairs 2022/23

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