Law don: Court of Appeal’s decision on overseas born kids unjust, archaic

 

The verdict by the Court of Appeal to deny citizenship to children born overseas to Malaysian mothers is "archaic" and "unjust", said law professor Shad Saleem Faruqi.

Speaking to the New Straits Times, the constitutional law expert said the Federal Constitution should not be interpreted literally.

He said while the two judges in the majority were correct in saying Article 14 of the Federal Constitution unambiguously excludes mothers, he disagreed with the overall verdict.

This is because Article 14 was legislated in 1962, but in 2001, Article 8(2) of the Federal Constitution was amended to bar gender discrimination in any law.

As such, he said, a judgement in 2022 should give more weight to the 2001 amendment, instead of using the "patriarchal values of 1962".

"We must interpret it (the Federal Constitution) in light of the fresh ideas that enriched it later," said Shad Saleem (above).

He added that Article 14 should also not be read in isolation but with the rest of the Federal Constitution, including Article 5(1).

"Article 5(1) speaks of the right to life and the term life must be read prismatically to include citizenship.

"A later law overrides a former law. A 2001 improvement in the constitution should not be ignored due to a provision inserted in 1962."

He said the "keyhole interpretation" of the law could lead to unjust and illogical outcomes.

For example, he said, a child born overseas to a Malaysian woman married to a foreigner is denied Malaysian citizenship.

However, if the same child's parents are not married, the child can receive Malaysian citizenship through their mother.

"In sum, the Court of Appeal's decision is unjust and archaic. It reflects a very narrow view of the judicial role.

"The courts are not just a legal but also a moral institution," he said.

Govt won't move until court process exhausted

The Court of Appeal earlier this month overturned the 2021 landmark decision of the High Court in Kuala Lumpur, which ruled that Malaysian mothers have the same right as Malaysian fathers to confer citizenship by operation of law to children born overseas.

In a two-one majority, the three-person bench of the Court of Appeal, chaired by judge Kamaludin Md Said, allowed the appeal by the three appellants - the government, the home minister and the National Registration Department director-general.

On Sept 9 last year, the High Court ruled that children born overseas to Malaysian mothers and foreign fathers are automatically entitled to Malaysian citizenship.

The respondents in the matter, six Malaysian mothers and NGO, Family Frontiers, are appealing the Court of Appeal decision.

Meanwhile, civil society has urged the government to table a bill to amend the Constitution to add the word 'mother' to the relevant sections of the Constitution, to allow mothers to automatically confer citizenship to their children regardless of where they are born or who their fathers are.

However, the government said it cannot act until the court process is exhausted, and that any changes to the Constitution must include the Conference of Rulers.

Malaysia is one of two dozen countries where mothers can’t automatically confer citizenship to their offspring.

The United Nations said such laws can lead to statelessness or stop children from accessing basic human rights, especially in the case of absent fathers.

Some Malaysian mothers who gave birth abroad have managed to secure citizenship for their children, albeit after years of applying, while others have failed without any reason given. - Mkini