June 22 verdict on govt appeal against citizenship for overseas-born kids

 

The government will know on June 22 whether it succeeds in its appeal to deny automatic citizenship to overseas-born children of Malaysian mothers and foreign fathers.

The three-person Court of Appeal bench chaired by judge Kamaludin Md Said, fixed the decision date on the appeal against Malaysian mothers being given the same citizenship-conferment rights as a Malaysian father.

The bench which also comprised of judges Azizah Nawawi and S Nantha Balan - set the verdict date following today’s online hearing of submissions from legal teams for both the government and Malaysian mothers.

“We need more time to decide as this is not an easy case but one of public interest, as it would affect the Federal Constitution (the supreme law of Malaysia that contains provisions on citizenship conferment rights),” Kamaludin told parties at the end of proceedings this afternoon.

Senior federal counsel Liew Horng Bin represented the government, while counsel Gurdial Singh Nijar appeared for six Malaysian mothers as well as family rights group Family Frontiers.

Appeal against High Court decision

The government is appealing against the Kuala Lumpur High Court decision on Sept 9 last year, where it had ruled, among others, that Malaysian women (married to foreign men) have the same rights as Malaysian men married to foreign women to confer citizenship by operation of law on their children born overseas.

Judge Akhtar Tahir 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.

Article 8 deals with the fundamental right to equality before the law, with the provision’s subparagraph two stating: “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.”

Article 14 deals with Malaysian automatic citizenship by operation of law.

Part II of the Second Schedule of the Federal Constitution is in relation to Malaysian citizenship by operation of law of persons born on or after Malaysia Day.

The government previously mounted a failed bid to stay the lower court decision, pending disposal of its appeal to the Court of Appeal.

It was reported that following the landmark High Court ruling, Malaysian mothers finally succeeded in registering their children as citizens with the National Registration Department.

‘Rewriting the Constitution’

Earlier during today’s Court of Appeal hearing, Liew submitted that the High Court’s ruling was in error as it amounted to rewriting the very provisions of the Federal Constitution itself.

The senior federal counsel contended this is because when the provision on citizenship (Article 14 read with the Second Schedule provision) was first promulgated in 1957, it only provided for fathers as having the right by operation of law to confer citizenship to children, including children they had with foreign mothers. 

Liew submitted that a proper interpretation of the Federal Constitution would show that the inclusion of only the word father in the citizenship provision was not considered discriminatory in 1957.

“It is the unmistakable intention of the framers of the Federal Constitution that the word ‘father’ does not include ‘mother’,” the government lawyer said.

Liew added that Malaysian mothers still have recourse by applying to the government to seek citizenship for their children per Article 15(2) of the Federal Constitution.

‘A living document’

However, Gurdial countered that the Malaysian mothers he represented had endured between nine to 10 years trying the application method, only to see it rejected by the NRD in the end.

The lawyer submitted that the purported remedy for Malaysian mothers under Article 15(2) is “illusory” as they spent endless hours and years waiting for results.

He contended that it is discriminatory as a reverse situation when Malaysian fathers seeking to register children bourne with foreign wives can take mere two or three days.

“Some of them (children of Malaysian mothers and foreign fathers) in this country attend school, but they face problems, sometimes they get rejected, they have to renew approval to attend school every year,” the lawyer contended.

Gurdial also submitted that the High Court was correct in its harmonious interpretation of the Federal Constitution by regarding the supreme law of Malaysia as a “living document” that responds to the needs of society in every era.

“The Federal Constitution is a living document and one (courts) try to breathe life into the document (through harmonious interpretation) without needing to refer back to the framers of the Constitution,” the lawyer contended.

He then made reference to the landmark Federal Court case on unilateral conversion involving kindergarten teacher M Indira Gandhi and her former husband who is a Muslim convert.

Gurdial highlighted that the apex court there interpreted the word “parent” in the Federal Constitution as meaning both father and mother in the context of the requirement for Islamic conversion of children.

It was reported that Indira’s ex-husband unilaterally converted their three children without her consent. The authorities are still attempting to locate the whereabouts of the Muslim convert and the couple’s youngest child.

 “We cannot be trapped in a time warp,” Gurdial submitted. - Mkini