Overseas-born kids can get citizenship if dad is Malaysian: Court

Only overseas-born children of Malaysian fathers can get citizenship by operation of law, according to the Court of Appeal.

Judge Kamaludin Md Said stated this in the written full grounds of judgment of last Friday’s Appellate Court 2-1 majority ruling to deny citizenship to overseas-born kids of Malaysian mothers and foreign fathers.

According to the full grounds released today and sighted by Malaysiakini, Kamaludin (above) said the Kuala Lumpur High Court last year erred when it interpreted the word ‘father’ in Article 14(1)(b) of the Federal Constitution - read together with the Second Schedule of the Constitution - to also include ’mother’.

Article 14 deals with Malaysian citizenship by operation of law (automatic), while Part II of the Second Schedule is in relation to Malaysian citizenship by operation of the law of persons born on or after Malaysia Day.

The provisions in Part II of the Second Schedule regarding children who are automatically citizens include “every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a state”.

In the landmark decision on Sept 9 last year, High Court judge Akhtar Tahir ruled that Malaysian mothers have the same right as Malaysian fathers to confer citizenship by operation of law to children born overseas.

Kamaludin held that the lower court erred when it disregarded the 2021 majority decision in the Federal Court ruling which denied citizenship to a boy of a Malaysian father and Filipino mother (the appeal is known as the CTEB case).

In the CTEB case, the 4-3 majority ruling held that the citizenship of a legitimate child of a Malaysian father and a foreign mother would follow the father.

The ruling further held that a situation involving an illegitimate child would see citizenship be determined by the mother.

Kamaludin contended that the CTEB case held that Article 14(1)(b) and Part II of the Second Schedule must be read in their proper context, which is to be read as a whole and to be given a straightforward plain meaning.

The judge said that in this context, the word “father” in Section 1 (b) Second Schedule is very clearly and specifically referring to fathers only and is not intended to be read as mother and father or either one of them.

He said the fundamental rule in interpreting the Federal Constitution or any written law is to give effect to the intention of the framers.

‘Interpret law accordingly’

Kamaludin remarked that the High Court rejected this interpretation and went against CTEB’s approach by saying if this approach is adopted, the court’s role will be downgraded to rubber-stamping the provision as enacted without addressing the actual purpose the provision was enacted or applying the provision in a fair and just manner.

“In my considered view and with due respect to the learned judge, the actual purpose of which the provision is enacted is very clear that citizenship by operation of law is only granted to any person born outside Malaysia whose father at the time of the child’s birth is a citizen.

“The word, ‘father’ refers to father only and does not include ‘mother’. 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,” Kamaludin said.

He noted that the High Court cannot take it upon itself and adopt a liberal interpretation to address the grievances faced by Malaysian mothers of overseas children as it is only Parliament that can amend the law.

“I too share the same concern. However, in my view, the court cannot readily empower itself to find a remedy to address the ‘grievances’ by altering the historical and philosophical context, as well as its fundamental underlying principles and which had been accepted as an integral part of the Constitution provided under Article 14 (1) (b), Section 1(b) of Part II of the Second Schedule of the Federal Constitution.

“I find the opinion of the High Court that Parliament does not take any conscious effort to discriminate between the mother and father in granting citizenship is a bare statement, without basis and clearly wrong.

“It was held in CTEB at paragraph 85 that the whole issue begs the question of whether the judiciary in the exercise of its judicial duty is constitutionally empowered to ignore or neglect the clear dictates of the Federal Constitution.

“Similarly, can the High Court, in this case, ignore the legislative provision to overcome the grievances faced by mothers in the name of progressive construction of the Federal Constitution?” Kamaludin said.

He pointed out that the grievances faced by the mothers and their children are covered under Article 15(2) of the Federal Constitution. It reads:

“The federal government may cause any person under the age of twenty-one years of whose parents one at least is (or was at death) a citizen to be registered as a citizen upon application made to the federal government by his parent or guardian.”

The judge explained that in this context, mothers can apply for citizenship for their children and that the remedy under Article 15(2) is a fair and just remedy.

‘I agree issue needs to be addressed’

“The policy of the government is clear. Mothers’ problems are actually against the approving authority which often rejected the applications and/or the conferment of citizenship under the said application is discretionary and allegedly tedious, takes an inordinately prolonged period for processing.

“The grievances are not against the existing law of Article 15 (2) of the Federal Constitution which provides the remedy but against the approving authority or the system which is currently in place which mothers complained of.

“The system can be improved or changed. I agree this issue needs to be addressed by the relevant authority,” Kamaludin said.

He added that the reading of Article 14(1)(b) and the Second Schedule are not affected by the 2001 parliamentary amendment that inserted sub-clause (2) to Article 8 of the Federal Constitution.

Kamaludin explained it is because the parliamentary debate on the amendment - as per the Hansard dated Aug 1, 2001 - showed that the introduction of the word “gender” in Article 8(2) was not intended to alter the operation of Article 14 and 15.

Article 8 (1) states that “all persons are equal before the law and entitled to the equal protection of the law.

Article 8 (2) lays out that “Except as expressly authorised by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment”.

On Friday last week (Aug 5) before the Appellate Court, the three appellants - the government, home minister, and the National Registration Department (NRD) director-general - succeeded in their appeal to deny citizenship to children born overseas to Malaysian mums and foreign dads.

Kamaludin and bench member Azizah Nawawi made up the majority ruling, while another member S Nantha Balan delivered the dissenting decision to deny the government's appeal.

The respondents in the matter are six Malaysian mothers and the family rights group Family Frontiers.

Dissenting judgment

However, in his full grounds of judgment also released today, Nantha Balan took the dissenting view that the 2001 amendment actually showed Parliament wanted Article 8(2) to affect Article 14 and the Second Schedule.

He pointed out that this is because Parliament did not seek to insert ‘matters concerning citizenship’ in Article 8(5).

Article 8(5) lists types of laws not affected by the main aspect of Article 8, such as provision regulating personal law, and any provision or practice restricting office or employment connected with the affairs of any religion or of an institution managed by a group professing any religion, to persons professing that religion.

“It is trite that Parliament is presumed to know of all existing laws when it legislates. Parliament does not legislate in vain.

“Thus, when Parliament amended Article 8(2) with effect from Sept 28, 2001, and thereby expressly declared that there should be no gender discrimination ‘in any law’, Parliament is deemed to have intended it to apply to all discriminatory provisions found within the Federal Constitution itself, unless the discriminatory provisions are legitimized via Article 8 (5) or via a non-obstante clause.

“In this regard, Parliament is deemed to be aware of the gender discriminatory wording of Article 14(1)(b) read with s(1)(b) Part II of the Second Schedule of the Federal Constitution.

“However, Parliament did not amend Article 8(5) to include ‘matters concerning citizenship’ so as to exclude it from the influence of Article 8(2). Further, Parliament did not amend Article 14(1)(b) to add a nonobstante clause so as to insulate it from the all-pervading influence of Article 8(2),” Nantha Balan said. - Mkini