Court of Appeal judge Kamaludin Md Said, in his written grounds of judgment in last Friday’s appellate court 2-1 majority decision in disallowing citizenship to children born overseas to Malaysian mothers and foreign fathers, said the word “father” in Section 1(b) of Part II of the Second Schedule of the Federal Constitution referred to the father only and was not intended to include the mother.
This meant it precluded Malaysian mothers who are married to a non-Malaysian citizen from passing on their citizenship status to their children born outside Malaysia.
Kamaludin said it was intended by the framers of the constitution that citizenship by operation of the law of children born on or after Malaysia Day must follow the status of the father.
“In my view, the court should not question why the law was enacted or whether Parliament had addressed its mind in enacting the law but the court’s duty is to interpret the enacted law accordingly,” he said.
He said the remedy for Malaysian mothers married to foreign spouses to get Malaysian citizenship for their children born overseas was provided under Article 15(2) of the constitution.
Kamaludin said the mothers’ grievances were not against the existing law of Article 15(2), which provided the remedy for them to apply for citizenship for their children, but against the approving authority or the system which was currently in place.
“The system can be improved or changed. I agree this issue needs to be addressed by the relevant authority,” he said.
He said it was his view that the High Court was re-writing the law in relation to the granting of citizenship to children born outside Malaysia when it applied the existing law and policy already in force in a manner to find a remedy to the grievances of the mothers by interpreting the word “father” to be read as mother.
On Friday, the Court of Appeal’s 2-1 majority decision by Kamaludin and Azizah Nawawi allowed the appeal by the government, the home ministry and the national registration department (NRD) director-general to reverse the High Court decision declaring that children born overseas to Malaysian mothers who married foreigners are entitled to citizenship by operation of law. Judge S Nantha Balan dissented.
The appeal involved Family Frontiers and six Malaysian women who are married to foreigners who wanted a court order for all relevant government agencies, including the NRD, the immigration department and Malaysian embassies, to issue documents relating to citizenship (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.
On the same day, the same appellate court panel dismissed an appeal by a 24-year-old woman Mahisha Sulaiha Abdul Majeed against the High Court’s decision in 2020, which rejected her suit to seek a declaration that she was entitled to be a Malaysian citizen.
In his grounds of judgment, Kamaludin also said the parliamentary process was a better way of resolving issues involving controversial and complex questions arising out of moral and social dilemma.
He also said Article 14(1)(b) of the constitution and Section 1(b) of Part II of the Second Schedule of the constitution were not gender discriminatory against women.
Article 14(1)(b) states every person born on or after Malaysia Day, fulfilling any of the conditions in Part II of the Second Schedule of the Constitution, is a citizen by operation of law, while Section 1(b) of Part II of the Second Schedule of the constitution states every person born outside the federation whose father is at the time of the birth a citizen is a citizen by operation of law.
‘Totally and inherently discriminatory’
In the minority judgment which ruled in favour of the mothers, Nantha Balan said it was untenable for the government to say that there was no discrimination against Malaysian mothers who were unable to pass on their citizenship to their children born overseas.
“There is no doubt that Article 14(1)(b) read together with Section 1(b) of Part II of the Second Schedule of the Federal Constitution is totally and inherently discriminatory of the rights of Malaysian mothers whose children were deprived of citizenship by operation of law solely because their spouses are foreigners and because the children were born overseas,” he said.
He said the word “father’ in Section 1(b) of Part II of the Second Schedule of the constitution should be read in a non-discriminatory way to include “mother’ as by virtue of Article 8(2) of the constitution, it would be unconstitutional to practise gender discrimination by recognising the blood descent of the father but not that of the mother for purposes of according citizenship to children born overseas.
On Friday, the Court of Appeal panel had also made it clear that the status quo should be maintained for the overseas-born children of the six Malaysian mothers who had obtained citizenship, pending disposal of their appeal to the Federal Court.