Court maintains ruling on citizenship for overseas-born children pending appeal

 

The government failed to get the Kuala Lumpur High Court to stay its ruling that Malaysian mothers have the right to confer citizenship to overseas-born children.

Judge Akhtar Tahir dismissed the government’s stay application this morning, pending disposal of a related appeal at the Court of Appeal.

The government appealed against the High Court decision on Sept 9, which declared that children born overseas to Malaysian mothers and foreign fathers are automatically entitled to Malaysian citizenship.

Lawyer Joshua Andran confirmed that the High Court dismissed the stay application. He is acting for the six Malaysian mothers and rights group Family Frontiers who had successfully sued for the declaration on the citizenship issue.

“The judge (Akhtar) in his decision said the defendant’s position was contradictory. On the one hand, they said that an amendment to the FC (Federal Constitution) to grant mothers this right must be first approved by the Conference of Rulers. This presupposed that the amendment was necessary.

“However, there is no question of an amendment because the court has already decided that the mothers have this right under the FC.

“Further, if the amendment goes through, there is no question of retracting any documents issued to the mothers as directed by the court.

“Further, the mothers have waited long enough and experienced hardship. They cannot wait indefinitely for the appeal process to be over. This will prejudice the plaintiffs and cause them continuing hardship.

“If the defendant intends to amend the FC in line with the High Court decision, then they should not put any hurdles in the pathway of the mothers,” Andran said.

The lawyer added that Akhtar ordered the government to pay costs of RM5,000.

The mothers and Family Frontiers were also represented by counsel Gurdial Singh Nijar, Ngeow Chow Ying, and Abraham Au, whereas senior federal counsel Liew Horng Bin represented the government.

Buying time to amend consititution

In the Sept 9 ruling, Akhtar Tahir had ruled, among others, that Malaysian women (married to foreign men) have the same right as Malaysian men married to foreign women to confer citizenship by operation of law on their children born overseas.

The judge said this is due to the harmonious reading of Article 8(2) of the Federal Constitution, read together with Article 14(1)(b) of the Federal Constitution, which is also read with Section (1)(b) of Part II of the Second Schedule of the Federal Constitution.

He ruled that a reading of all these provisions together prohibits discrimination based on gender when it comes to conferment of citizenship.

During a winding-up speech at the Dewan Rakyat on Sept 22, Home Minister Hamzah Zainudin said that the government sought the appeal and a stay on the court ruling in order to buy time while they look into amending the Federal Constitution.

He reportedly said that the constitutional amendment would make it easier for Malaysian mothers married to foreigners to give birth overseas.

“The Home Ministry made the decision to appeal and request for a stay of execution (in this case) to buy time to avoid contempt of court and at the same time, we are not going against the Federal Constitution,” Hamzah said. - Mkini