A three-member bench chaired by Kamaludin Md Said fixed the date after hearing submissions from government lawyer Liew Horng Bin and counsels Gurdial Singh Nijar and Cyrus Das in two separate cases.
Kamaludin, who sat with Azizah Nawawi and S Nantha Balan, said they needed time to read the legal authorities submitted before making a finding.
“This is a public interest case and the decision will affect the Federal Constitution,” he said, adding that parties were also given three more weeks to file further submissions to assist them.
The government, the home minister, and the director-general of the national registration department (JPN) are appearing as appellants and respondents.
Last year, a High Court ruled that the government must grant citizenship as the word “father” in the Second Schedule of the Federal Constitution must mean and include mothers.
In allowing several declaratory reliefs sought by an NGO and six mothers that certain provisions on citizenship in the Federal Constitution were discriminatory, Judge Akhtar Tahir said they were entitled to be conferred citizenship by operation of law.
In the second case, Mahisha Sulaiha, who was born to her Malaysian mother and Indian national father in India, is appealing against a 2020 High Court ruling that favoured the government over her bid to become a Malaysian.
Liew in his submission today said Akhtar had rewritten the law and the constitution and changed the policy of the government.
“His ruling also amounted to issuing a mandatory injunction against the government,” he said.
Liew submitted that the judge did not take into account the intention of the framers of the constitution that fathers could not be substituted for mothers to grant citizenship to children.
He said Akhtar read Article 8, the equality clause, into Article 14(1)(b) and Sections 1(b) and 1(c) under the Second Schedule of the constitution.
Liew said the amendment to Article 8 by Parliament in 2001 to remove any discrimination based on gender was not intended to affect the granting of citizenship.
The government lawyer said the issuance of citizenship was deemed an entrenched provision as any amendment to the constitution must first obtain the consent of the Conference of Rulers.
Gurdial, who appeared for the NGO and six mothers, submitted that the amendment to Article 8 elevated the status of women to be on par with men.
“A Federal Court ruling has stated that everything should be interpreted according to the equality clause unless there are exceptions,” Gurdial said, adding that fundamental rights must be given a broad interpretation.
He said the constitution was a living document and must be given a harmonious interpretation.
“The judge in ruling for the six mothers decided based on the present social condition,” he said, adding that the judge had also taken into account the best interest of the children as Malaysia was a signatory to an international treaty on protecting children.
Das, representing Mahisha, submitted that Article 8(2) stated that there could be no discrimination against citizens.
“In both cases before this court, the mothers are citizens and they must enjoy the protection of the law,” he said.
Das added that the constitution provided for an express exclusion clause when it came to Malay and native rights of Sabah and Sarawak as an exception to equality.
“However, Article 14 in granting citizenship by operation of law excludes discrimination,” he said.
Das said the law was not what Parliament stated but what a judge decided.
“Do judges make law? Yes, it has been said repeatedly that it is done through the interpretative process,” he added.