Written by: Averroes
(1.0) Introduction
The High Court in Kuala Lumpur allowed children born overseas with Malaysian mothers and foreign fathers to be eligible to become Malaysian. The proceeding was conducted virtually via Zoom. The precedent will remain, unless the government appeals the decision.
Usually, children are automatically (by operation-of-law) Malaysians if their fathers are Malaysian. However, if not, then it depends on their mothers, who have to undergo several procedures. This is discriminatory and that the mother does not have the same automatic right.
Frankly speaking, this decision was already decided some time ago, in the Federal Court decision regarding the Malaysian father and Filipino mother. This decision seems to emanate the Federal Court decision again. You may read the article here, regarding the child deprived of Malaysian citizenship, just because he was illegitimate.
If you would like to have access to the full case, the citation is; CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] MLJU 886.
(1.1) Social Repercussions
According to statistics, Malaysia is among the 25 countries that deny rights to women to confer citizenship to their children, without equal footing to men. Additionally, Malaysia is among the 50 countries that forbids conferring citizenship to their husbands as well.
Children born overseas would have an elusive time or sheer stupefaction, of renewing, extending or applying for visas. They would not have the same rights to other Malaysian children in terms of public education and healthcare. It consumes years for the children to finally become Malaysian.
Prior to the court decision, a Malaysian man could confer citizenship to their children abroad in just within 3 days. However, it is not the same case for Malaysian mothers, as it is more cumbersome. Even if mothers apply for their child's citizenship, there is possibility that it would fail and they would have to attempt again.
(2.0) Legal Analysis
Before the decision, Justice Akhtar dismissed the government's application to strike out the originating summons. The Court of Appeal affirmed his Justice's decision, which then brought to the current case. Even when the government argued that the suit by Family Frontiers (plaintiff), was scandalous, frivolous, vexatious and an abuse of court process, the court found on the contrary.
The case materialised, after Ms. Suri Kempe and six Malaysian women filed a suit, while seeking six court orders, among them include;
(i) Declaration that section 1(b) and 1(c) of the 2nd Schedule, Part II of the FC had to read harmoniously with article 8(2) of the FC.
(ii) Court order for all relevant government agencies, such as the National Registration Department, Immigration Department and Malaysian embassies to issue citizenship documents, passports and identity cards to children born abroad to Malaysian mothers and foreign husbands.
The laws based on the decision was that according to the following provisions;
Article 14(1)(b) of the Federal Constitution (FC) read harmoniously with 2nd Schedule, Part II, section 1(b) of the FC, pertained to citizenship rights. It also had to be read with article 8(2) of the FC which prohibits discrimination on the base of equality.
According to High Court Judge, Akhtar Tahir enunciated that, the word 'father' must also mean the 'mother' together, hence children are automatically Malaysians or by operation of law. As long as either their father or mother are Malaysians, then they are already Malaysians too.
His justice added, "The Courts are empowered to interpret the law to uphold the spirit of the Federal Constitution and ensure justice. The case does not seek to change the policy, but rather apply the existing law that will find a remedy forthe grievances of the plaintiffs are real... the discrimination is apparent."
Furthermore, the case of Chin Kooi Nah (suing on behalf of himself and as litigation representative to Chin Jia Nee, child) v Pendaftar Besar Kelahiran dan Kematian, Malaysia [2016] 7 MLJ 717, concerns an adopted child who did not have Malaysian citizenship. If not ascribed as Malaysian, she would be stateless and would cause psychological adverse effects onto her.
However, could she possibly become Malaysian by operation-of-law, despite being adopted?
The court answered that, since she was born abroad, article 14(1)(b) of the FC applied to her. This case affirms our current case and the Filipino mother case that, article 14(1)(b) of FC had to be read with section 1(a), Part II of the 2nd Schedule FC. The child must be born to at least, either one of her biological or lawful parents were Malaysians. The problem was that the child's parents were unknown, hence she could not become Malaysian.
Also, the Adoption Act 1952 had no express or implied rights to confer citizenship by adopted parents. Article 14 of the FC also made no reference to 'adopted parents', but just 'parent' who were the lawful and biological ones. Moreover, there is article 15A of the FC as a method for manual citizenship registration. Though, in the author's previous article, manual registration is too sluggish and nugatory.
(2.1) Legal opinions from lawyers
Lawyer Gurdial Singh Nijar commented that the High Court decision fulfilled the intention of Parliament when article 8 of the FC was amended back in 2001, as to guarantee no discrimination against women. There were no costs as it was a public interest issue. The amended article stipulates that;
"All persons are equal before the law and entitled to equal protection of the law."
With this decision, it vouchsafed the family structure and provide a future and a cornucopia of opportunities for children as well as to serve our country. Another lawyer, Joshua Andran said that the decision was illuminating to fight against discrimination.
Layer Abraham Au also said that, the court embarked on a massive breakthrough in interpreting the Federal Constitution. Ever since the Federal Court decision in M Indira Ghandi, it exceed the threshold of a certain law to seize the needs and rapid overture of public exigency.
In Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545, similarly it states that, based on the purposive interpretation of article 12(4) of the FC, read with the 11th Schedule of the FC and sections 5 and 11 of the Guardianship of Infants Act 1961, 'both' consent of 'parent' was required before a certificate of conversion to Islam could be issued in respect to the children.
This includes both husband and wife. Converting the religion of the children could not be done unilaterally. This would mean that 'father' should also mean 'mother', as 'parent', meaning 'both parents'.
(3.0) Public reaction
Ms. Suri Kempe, president of the Family Frontiers support group (NGO) lauded the court decision as it did not uphold justice for the plaintiffs, but it extends to all Malaysian mothers and children who were blighted by the decision. It was viewed as a groundbreaking step to nurture an atmosphere of equal rights for women, a great achievement for a more egalitarian and just Malaysia.
Malaysian mother, Adlyn Adam Teoh said that, "Malaysian women have been waiting for years, and the day has finally arrived. Justice has been served."
Myra Eliza Mohd Danil, another Malaysian mother said, she had been trying to apply Malaysian citizenship for her daughter since she was five. "We thank God for the court's decision today. I am so happy and I cannot wait to tell her that she is also Malaysian, just like her brother."
The suit was joined by other mothers, namely Choong Wai Li, Ng Mei Mei. The other two mothers name were kept confidential for privacy reasons.
Commissioner Prof Datuk Noor Aziah Mohd Awal of the Human Rights Commission of Malaysia (SUHAKAM) also concur and celebrated the court's decision. She also stated that, the Office of the Children's Commissioner (OCC) had been monitoring the case very closely by conducting a watching brief, since 2020.
This would set a powerful precedent and upholds the Federal Constitution's true spirit There were international provisions under the Convention of the Rights of Children (CRC) that were violated (since Malaysia is a signatory), if the operation-by-law remained, solely for the father only. This would counter the following, such as;
(i) Article 2 of the CRC for right to not be discriminated
(ii) Article 3 of the CRC, to comply with the best interest of the child
(ii) Article 7 of the CRC for right to acquire nationality
(iii) Article 8 of the CRC for the right to preserve his or her identity, including nationality
(4.0) Conclusion
To conclude, Malaysia has progressed from Undi 18, to conferring Malaysian citizenship from mothers to children, but there are still other Federal Court decisions and other decisions which prejudicially affect the rights of the people, unless they are reversed. For now, we need more brave and courageous Malaysians to file judicial reviews or to challenge the constitutionality of certain laws as many Malaysians face pressure of iniquity from an omnibus of draconian laws still in effect.
For now, we should continuously study and observe what are the laws, have a civilised discussion and bring proper modes or means to cater to each one of these problems together.
(5.0) References;
The Straits Times. (September, 2021) Children born overseas to Malaysian mums eligible for citizenship, court rules in landmark decision. Retrieved from, https://www.straitstimes.com/asia/se-asia/children-born-overseas-to-malaysian-mums-eligible-for-citizenship-court-rules-in
Borneo Post Online. (September, 2021) Suhakam children’s commissioner lauds Court’s ruling on citizenship for children born to Malaysian mothers abroad. Retrieved from, https://www.theborneopost.com/2021/09/12/suhakam-childrens-commissioner-lauds-courts-ruling-on-citizenship-for-children-born-to-malaysian-mothers-abroad/
Hafiz Yatim. (September, 2021) Court rules children born overseas to Malaysian moms also eligible for citizenship. Retrieved from, https://www.theedgemarkets.com/article/malaysian-mothers-can-apply-citizenship-children-born-overseas-rules-high-court
Emmanuel Santa Maria Chin. (September, 2021) High Court rules that children born to Malaysian mothers abroad should automatically be conferred citizenships. Retrieved from, https://www.malaymail.com/news/malaysia/2021/09/09/high-court-rules-that-children-born-to-malaysian-mothers-abroad-should-auto/2004219
V Angalagan. (September, 2021) Mums can confer citizenship on children born overseas, declares court. Retrieved from, https://www.freemalaysiatoday.com/category/nation/2021/09/09/mums-can-confer-citizenship-on-children-born-overseas-declares-court/
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