Time to accord a mother her rights

 

From Hanipa Maidin

The right of the mother ought to be duly protected.

Despite having achieved independence for 65 years, Malaysia has not, unfortunately, been able to secure the right of a mother to pass her citizenship to her children who were born outside the federation.

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Why? Because the father of such children is a non-Malaysian.

The recent majority decision of the Court of Appeal in Mahisa Suhaila’s case merely cements the aforementioned painful reality.

We, however, may still breathe a sigh of relief as the minority opinion of the same court opted to duly recognise the fundamental right of the mother, hence throwing the gender discrimination out the window.

The two judges of the Court of Appeal who refused to grant citizenship to the children – via the mother’s route – exercised a literal and strict interpretation of the black letters of our apex law.

Was their judgment erroneous?

To be fair to them, the law endorses their interpretative task in resorting to literal and strict legal construction. Fans of a strict constructionist outlook would argue that the judges are not the lawmakers. They do not legislate laws. They merely interpret them.

In literal interpretation, one merely interprets the law as it is and not as it ought to be. In jurisprudence, that is basically the primary character trait of a school of law known as positivism.

As far as the positivists are concerned, in reaching exactitude and certainty in law, the law ought to be given its literal meaning despite the fact that by doing so, it may give rise to injustice or unfairness.

Be that as it may, the majority opinion in Mahisa Suhaila rigidly construed the word “father” in Section 1 (b) of Part II of the Second Schedule of the Federal Constitution to simply mean “the biological father”. Period.

Both judges unanimously rejected the creative interpretation of the high court judge who said the word “father” has to include mother.

Justice Nantha Balan – who represented the minority opinion – held that the children were entitled to Malaysian citizenship by operation of law pursuant to Article 14 (1) (b) of the Federal Constitution read together with Section 1 (b) of Part II of the Second Schedule.

In making such a decision, the said judge declined to be unduly shackled by literal interpretation. Hence he held that Article 14 (1) (b) read with Section 1 (b) of Part II of the Second Schedule ought to be harmoniously interpreted with Article 8 of our apex law which, in essence, outlaws gender discrimination.

Consequently, in his view, the word “father” must include mother as well.

By resorting to such a wide and liberal interpretation, we may safely say that Justice Balan was indulging in judicial activism or pragmatism. He declined to be hounded by “the ghosts from the past”.

He seemed to hold the view that being a living constitution, our apex law ought to hold a dynamic meaning that evolves and adapts to a new reality and environment.

As pointed out by Chief Justice Robert Shenton French AC (the former CJ of Australia) “activist judges are those who, in discharging their functions, exceed what the constitution provides, or what history defines, or what the contemporary society expects of them”. - FMT

Hanipa Maidin is the MP for Sepang.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.