A three-member bench chaired by Azizah Nawawi said the suit should go for trial as Articles 8 and 14 of the Constitution need to be interpreted and argued.

“We find it cannot be said that the amendment to the originating summons is obviously unsustainable as it boils down to the interpretation of Articles 8 and 14,” she said in the unanimous verdict today.

Article 8 states that all persons are equal before the law and entitled to equal protection, while Article 14 is on acquisition of citizenship by operation of law.

This citizenship provision has to be read together with the Second Schedule of the Constitution.

The other judges were Abu Bakar Jais and Mariana Yahya.

Following the decision, the High Court in Kuala Lumpur is expected to hear the merits of the suit on Tuesday.

Earlier, senior federal counsel Ahmad Hanir Hambali said in his submission that Article 8 had its exception as Clause Two states “except as expressly authorised by this Constitution”.

He said the Second Schedule clearly states that only the father who is a Malaysian and legally married to a foreign spouse could apply for citizenship for his child who was born overseas.

Hanir said the suit should not be entertained because the plaintiffs cannot be accorded to have legitimate expectations.

“The suit is frivolous and any international covenant has no force of law. It is only the Constitution,” he said.

Lawyer Gurdial Singh Nijar said Article 8 was amended in 2001 in order not to discriminate against anyone based on gender.

“However, Article 14 and the Second Schedule must be read and interpreted in a harmonious way,” he said.

Gurdial said the word “father” in the schedule must also mean mother and vice-versa to give effect to gender equality.

He said the case must be heard to give the mothers their day in a court of justice.

Gurdial said the plaintiffs had amended their suit which was agreed to by government lawyers.

On May 6, High Court judge Akhtar Tahir, who dismissed the government’s application to annul the suit, said there was no justification for a mother to be excluded from applying for citizenship for her child.

Family Frontiers and the mothers had filed the suit to get the court to declare several provisions – namely Article 14(1)(b) and Sections 1(b) and 1(c) under the schedule of the Constitution – invalid because they are discriminatory against women.

They claim that the Constitution only allowed a father to pass his citizenship to his children born outside the federation, but a mother could not do so.