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Monday, May 31, 2021

Proham: Amend Constitution to protect rights of innocent children

 


In the aftermath of a Federal Court decision over the citizenship of a boy born to a Malaysian father and a Filipino mother, human rights group Proham is calling on the government to amend the Federal Constitution to protect the basic rights of innocent children.

"All human beings are entitled to basic human rights without discrimination of any kind.

"This includes the right to nationality, which should not be based on gender or legitimacy of birth," they said.

On Friday, the court narrowly dismissed a citizenship bid for the 11-year-old child with a Malaysian father and foreign mother as he was “illegitimate” when he was born and his parents had registered their marriage five months after his birth.

"To deprive a child of his right to nationality based on the non-marital status of his parents which he has no control of is a denial of a basic right, and one that cannot be in the best interest of the child - which should be the paramount consideration of any nation and her courts," read the Proham statement.

It was signed by chairperson Michael Yeoh, deputy chair Denison Jayasooria, secretary-general Khoo Ying Hooi, exco member Kuthubul Zaman, and member Shad Saleem Faruqi.

In the majority ruling of the 4-3 decision, judge Rohana Yusof pointed to Article 14 of the Constitution and said that citizenship by operation of law must be determined at birth, not after.

The Court of Appeal president also ruled that an “illegitimate” child followed the mother’s citizenship, citing Section 17 of Part III of the Constitution. The boy in question reportedly has a Filipino passport.

Joining her were judges Vernon Ong, Zabariah Mohd Yusof, and Hasnah Mohammed Hashim.

The three dissenting judges were Chief Justice Tengku Maimun Tuan Mat, Nallini Pathmanathan, and Mary Lim Thiam Suan.

Tengku Maimun allowed the boy’s appeal as she said he met all requirements for citizenship by operation of law. A person’s “legitimacy” was irrelevant in determining citizenship provided the biological father’s identity was known, she also said.

Chief Justice Tengku Maimun Tuan Mat

Proham said it applauded the dissenting judgment of the three judges.

"As the Federal Constitution is an evolving instrument, Proham urges the judiciary to take on a more liberal stance when interpreting the Constitution to ensure basic human rights are accorded to its citizens and their offspring and in particular Article 8 of the Federal Constitution which provides that all persons are equal before the law and are entitled to equal protection of the law.

"Adherence to a literal interpretation of the Constitution, which denies a basic human right to a child, should be avoided at all costs as it is not beneficial to any parties concerned," it added.

"Therefore, Proham calls on the government to take immediate steps to amend the Constitution to reflect the dissenting judgment of the Federal Court. Instead of a literal approach, a purposive, prismatic, and moral interpretation should be adopted that expands the horizons of human rights and human dignity, recognises equal rights of both parents, and protects the basic rights of innocent children," it said.

Yesterday, Housing and Local Government Minister Zuraida Kamaruddin said she was greatly concerned by the decision and would raise the matter in the cabinet.

Lawyers and gender equality groups have also called for law reform saying that it was not right to deprive children of citizenship for something they had no control over - their parents’ marital status.

“A child does not choose to be born legitimate or illegitimate. The law must accommodate what is in the best interests of a child.

“I believe that the Legitimacy Act 1961 and the (Federal) Constitution should be amended so that a child is not deprived of citizenship just because of the parents' marital status,” said lawyer Lim Wei Jiet.

Bar Council Constitutional Law Committee co-chairperson Karen Cheah highlighted that the issue of citizenship of the child would be tied closely to the liberty, equality, and basic rights of the child such as education, healthcare, employment, registration of birth, marriage, or death, the right to own property, and the right to vote.

“These are basic fundamental rights of every human,” she told Malaysiakini.

They also disagreed with another part of the ruling, which stated that a child who is illegitimate at birth should take after the mother’s citizenship, saying it was discriminatory to the child's father.

Article 8 of the Constitution stipulates that all persons are equal before the law and entitled to the equal protection of the law. It prohibits discrimination against citizens on the basis of gender, religion, race, or place of birth.

The Joint Action Group for Gender Equality (JAG), representing 11 women and gender groups, also said they were disappointed at the court decision’s “glaring disregard” for Article 8 and stressed that the gender of the Malaysian parents should be “irrelevant” in citizenship petitions.

They also called for the Constitution to be amended. - Mkini

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