The Malaysian Bar is highly disappointed with the recent Court of Appeal majority decision that held that citizenship cannot automatically be granted to children born overseas to Malaysian mothers with foreign spouses.1 Essentially, Malaysia’s gender-discriminatory citizenship laws deny women the equal right, as their male counterparts, to confer citizenship on their overseas-born children.
This Court of Appeal majority decision overturned the landmark High Court decision of Suriani Kempe & Ors v Government of Malaysia & Ors made last year on 9 September 2021, which was considered a victory and a ray of hope for Malaysian mothers who had fought tirelessly for their children to be granted Malaysian citizenship, and which ordered the issuance of citizenship documents to impacted children.
The rationale behind the reversal of the significant High Court decision was an explication of the Second Schedule of Part II, Section 1(b) of the Federal Constitution by the majority of the Court of Appeal, who took the view that the word “father” in the above-mentioned section, refers to the child’s biological father only, and cannot be extended to include the mother, nor can it mean “parents”. Respectfully, such an interpretation is regressive and antiquated. It harks back to a time of gender discrimination — where women were considered unequal to their male counterparts.
The Malaysian Bar echoes the sentiments of the dissenting judge, Datuk S Nantha Balan, that the view that only fathers can confer citizenship, is inequitable and discriminatory. The majority interpretation by the Court of Appeal blatantly violates Article 8 — the equality provision of the Federal Constitution — effectively stating that a mother’s lineage is secondary to a father’s.
It is the Malaysian Bar’s position that laws should be interpreted harmoniously and viewed holistically, because only through a harmonious interpretation of the laws, can it prevent any repugnancy and anomalous consequence between the various provisions of the law as contained in the Federal Constitution. While there appears on the face of it inconsistencies in the law, such provisions should be construed in a manner in which justice can be best served, and only then is there a true practice of the rule of law, not rule by law.
For decades, Malaysian women with foreign spouses have not been able to confer citizenship on their children due to the outdated provisions of the Federal Constitution. Mothers have had to rely on Article 15(2) of the Constitution — which allows those under the age of 21 to apply for Malaysian citizenship — as long as one parent is Malaysian. Yet, there have been numerous and unending reports of Malaysian mothers, who have had to endure many years, some even decades, of waiting with no guarantee that their children would ever be recognised as Malaysians.2 The mothers who had initiated the suit in the High Court, together with rights group Family Frontiers, had reportedly first tried to apply for their children to be registered as citizens. However, their applications were all rejected, without any reasons provided. The entire process of obtaining citizenship for their children was tedious, protracted, and arbitrary.3
Unequal gender laws impede the empowerment of women and negatively affect their participation in society. In this case, it is not just the women who are affected — it is the children as well. The consequential far-reaching impact on the denial of Malaysian citizenship for these children will cause the children to be denied access to a whole range of social institutions and legal rights, including education, healthcare, employment opportunities, and other types of fundamental rights, such as access to justice.
While Malaysia is a signatory to the Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”), it still maintains its reservations towards Article 9(2) of CEDAW which grants women “equal rights with men with respect to the nationality of their children.” Such reservations are archaic and have no place in modern society.
The ability of mothers to confer citizenship on their children is a critical aspect of mature democracy, and must be championed and defended at all costs. Such stark double standards reflect poorly on Malaysia and will result in even greater hardship for mothers who only want the best for their children, and their children.
The Malaysian Bar stands in solidarity with all Malaysian mothers who have been affected by this decision, and we call on those in positions of authority to uphold and protect the rights of women, to ensure that gender equality is achieved.
Karen Cheah Yee Lynn
9 August 2022
1 “No ‘automatic’ citizenship for children born overseas to Malaysian mums”, Free Malaysia Today, 5 August 2022.
2 “Malaysian mothers fight country’s unequal citizenship laws”, Al Jazeera, 3 August 2022.
3 “Explainer: How the High Court decided Malaysian mothers’ overseas-born children can be citizens too”, Malay Mail, 20 October 2021.