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Landmark Decision on Citizenship of Children Born Overseas to Malaysian Mother

Updated: May 27



Introduction


Article 14(1)(b) read together with section 1(b) in Part II of the Second Schedule of the Federal Constitution, every person born outside of the federation whose ‘father’ is a Malaysian, by operation of law, will automatically obtain Malaysian citizenship. Notably, Justice Datuk Akhtar Tahir has delivered a landmark interpretation of this provision in the case of Suriani Kempe & Ors v Kerajaan Malaysia & Ors [2021]. However, this landmark ruling was subsequently overturned by the Court of Appeal in response to the government's appeal. This article aims to examine various aspects of this landmark case and provide personal insights into its implications.


Landmark decision (Overturned)


Prior to this decision, the law was clear where a child who was born overseas to a Malaysian mother and non-Malaysian father cannot automatically be granted Malaysian citizenship. However, in light of significant shifts in societal moral values, this law has become increasingly controversial due to the allegations of gender-based discrimination.


The Suriani case represents a landmark legal action against the government, driven by the intention of securing equal rights for Malaysian mothers to automatically grant citizenship for their children born overseas. In this case, the plaintiffs sought to declare that Malaysian women with foreign spouses have the same constitutional right as Malaysian fathers under the Federal Constitution for their overseas-born children to have the right to be Malaysian citizens. This was done by arguing that the Article 14(1)(b) of the Federal Constitution, and its related clauses in the Second Schedule should be interpreted harmoniously with Article 8 of the Federal Constitution which guarantees the fundamental rights of equality to all persons before the law. The High Court, surprisingly, held that  children born outside of Malaysia to Malaysian mothers must be granted citizenship by giving the reasoning that the word "father" in the Second Schedule of the constitution should be interpreted to include mothers and that their children are entitled to citizenship by operation of law. 


After this landmark decision was ruled, despite many people from the public and even judiciary giving a high complimentary comment towards this decision, the government appealed. On 5 August 2022, the Court of Appeal overturned this landmark decision. The Court of Appeal, in the majority judgement, stated that “The High Court erred in failing to appreciate that the use of the word ‘father’ in the aforesaid provision by the framers of the Constitution was deliberate and context sensitive. It was not meant to connote ‘mother’.” The Court of Appeal held that children born overseas to Malaysian mothers could be denied citizenship since the word "father" in section 1(b) in Part II of the Second Schedule, is "clear and unambiguous" and cannot be interpreted to include mothers. 


Criticism of the Court of Appeal decision

Many studies have criticised the decision of the Court of Appeal by saying that the majority of the Court of Appeal has taken the words of the constitution literally, which is discriminatory in nature towards not only the mother but also the children


According to Gurdial Singh Nijar (2020), the lawyer who represents the plaintiffs in the Suriani case, when interpreting the constitution, the court should have been giving full recognition and effect to fundamental rights and freedoms. This principle is reflected in the judgement presented by the Federal Court in Lee Kwon Woh v PP [2009]. In this case, the Federal Court held that the constitutional provisions must be interpreted conferring rights “with the fullness needed to ensure that citizens have the benefit these constitutional guarantees are intended to afford''. Interpreting the word ‘father’ not including mother would seemingly be a violation of Article 8(2) which guarantees that no citizens shall be discriminated against on the ground of gender. In addition, Lord President Raja Azlan Shah in Dato Menteri Othman bin Baginda v Dato Ombi Syed Alwi Syed Idrus [1981] also emphasised that while construing the provisions of the constitution, it must be construed broadly with less rigidity and more generosity.


Moreover, a Malaysian Constitutional expert, Emeritus Professor Datuk Dr Shad Saleem Faruqi has also shared his perspective on the evolution of the interpretation of the citizenship provision through operation of law. He emphasised that constitutional provisions related to citizenship, which were drafted about 64 years ago, cannot remain unchanging. Professor Faruqi proposed that the interpretation should be influenced by the new dynamics introduced by the constitutional amendment of Art 8(2). 


Further, in his article, Hussaini Rozi criticises the interpretation of constitutional provisions, arguing that they should align with Malaysia's international obligations. This is due to the fact that Malaysia is a signatory of the Convention on the Rights of a Child (CRC), and the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). For instance, Article 9(2) the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) expressly provides that the State shall grant women equal rights with men with respect to the nationality of their children. In fact, Malaysia has taken these obligations seriously, as evidenced by the government's amendment of Article 8(2) in 2001 to eliminate gender discrimination, showcasing its commitment to complying with CEDAW.


Personal insights


In my opinion, the Court of Appeal has correctly interpreted and applied the provisions in the Federal Constitution. I firmly believe that the Constitution should be construed according to its plain language, and its grammatical and ordinary sense should prevail. As was wisely noted in the case of Datuk Harun v PP [1976], the court is not authorised to distort or manipulate the Constitution's language to serve any legal or constitutional theory, or even to rectify perceived errors or omissions. Similarly, the ruling in Jabar v PP [1995] emphasised that a law is valid and binding as long as it is duly enacted, regardless of whether it is fair, just, or reasonable. While it may be acknowledged that this provision appears to discriminate against the rights of Malaysian mothers, it still does not justify twisting the law's meaning, especially when it is clear and unambiguous.


In this context, the Court of Appeal referenced the Federal Court decision in CCH & Anor v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia (2021), where citizenship by operation of law was upheld as a fundamental and constitutional right. The Court of Appeal further points out that there is no space for discretion or interpretation because the phrase "citizenship by operation of law" could not be more explicit. 


Further, I do agree with the principle that while interpreting the provisions of the constitution, the court should always have regard to the original intention of the framers of the Federal Constitution and harmonise their collective meaning. This principle was reiterated by the Federal Court in CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & 2 Ors (2021) by saying that the fundamental rule in interpreting the Federal Constitution or any other written laws is to give effect to the intention of the framers. Historically, there is no evidence to prove that the framers of the Federal Constitution, the Reid Commission, nor the Lord William Reid nor Abdul Hamid (Pakistan Court Judge) have the intention to include mother in the word ‘father’ in the Second Schedule. Instead, it is crystal clear that the commission only intends to include ‘father’ since they have made the word and the structure of the sentence clear and unambiguous.


Lastly, the High Court may not have interpreted Article 8 (2) correctly. Under Article 8(2) of the FC, it is true to say that generally there shall be no discrimination against citizens on grounds of gender. However, there is an exception, and this exception is explicitly mentioned in the very beginning of Article 8(2): “Except as expressly authorised by this Constitution”. In this regard, the Court of Appeal in the Suriani case, also gave out a reasoning that although gender discrimination was constitutionally unlawful, such discrimination was 'expressly authorised' by the Federal Constitution itself. Thus, gender discrimination prescribed in Article 14(1)(b) read together with Part II of the Second Schedule is exceptionally legitimised and permitted under the FC.


Conclusion


It is reassuring to note that Malaysia's government has shown their dedication to undertaking a comprehensive constitutional amendment to facilitate citizenship applications for children born abroad to Malaysian mothers with foreign spouses. The proposed amendment has already been submitted to the cabinet and is scheduled for presentation to the Council of Malay Rulers. Once consent is granted, the amendment is expected to be introduced in Parliament by the end of this year. However, in the meantime, the Court of Appeal's interpretation of the law remains accurate, ensuring the continued effective operation of the law. In short, the court’s role, at all material times, is to enforce the law by implementing the full meaning of the law and not to twist the meaning of the law to the extent that the most original meaning of the law has gone.


Written By: Lee Mann Heyy

Edited By: Nurul Adriana Hadirah



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