Apex court grants leave to appeal in overseas-born kids citizenship case

 

Six Malaysian mothers and a family rights group have obtained leave from the Federal Court to commence with their appeal for citizenship for overseas-born children with foreign fathers.

A three-person bench chaired by Chief Judge of Sabah and Sarawak Abang Iskandar Abang Hashim unanimously granted the leave to appeal.

The apex court would later set a separate date to hear the merits of the appeal. Today’s bench also comprised judges Vernon Ong Lam Kiat and Mary Lim Thiam Suan.

The six mothers and Family Frontiers are appealing against a Court of Appeal verdict on Aug 5.

On that date, the Court of Appeal allowed the government’s appeal to deny citizenship to overseas-born children of Malaysian mothers and foreign fathers.

The Court of Appeal overturned the 2021 landmark Kuala Lumpur High Court decision 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 chaired by judge Kamaludin Md Said allowed the appeal by the three appellants - the government, the home minister and the National Registration Department (NRD) director-general.

Kamaludin and bench member Azizah Nawawi made up the majority ruling, while another bench member S Nantha Balan delivered the dissenting decision to deny the government's appeal.

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

However, the Court of Appeal made it clear that the citizenship already granted to the children of the six Malaysian mothers will remain, pending disposal of their appeal to the Federal Court.

The bench also informed parties that in relation to the status of citizenship applications for other Malaysian mothers with foreign fathers of overseas-born children still pending before the NRD, such applications would be “frozen” pending disposal of the appeal before the apex court.

Three questions of law

In relation to today's apex court decision to grant leave to appeal, three questions of law would be considered in the upcoming hearing of the merits of the appeal.

The questions are:

1. Whether a person who was born outside the Federation to a Malaysian mother is a citizen of Malaysia by operation of law pursuant to Article 14(1)(b) read with Part II Section 1(b) of the Second Schedule of the Federal Constitution?

2. Whether the term “father” in Part II Section 1(b) of the Second Schedule to the Federal Constitution under Article 14 on citizenship should cease to be read literally in a discriminatory way after the coming into force of the amendment to Article 8(2) of the Federal Constitution in September 2001 which prohibits gender discrimination?

3. Whether Article 8(2) of the Federal Constitution should be interpreted to prohibit gender discrimination in matters concerning citizenship given that Article 8(5) was not also amended to exclude “citizenship” as a subject not falling under Article 8 at the time when Article 8(2) of the Federal Constitution was amended to generally prohibit gender discrimination?

Counsel Gurdial Singh Nijar appeared for the six Malaysian mothers and Family Frontiers, while senior federal counsel Liew Horng Bin represented the government. - Mkini