The government is on the right track by agreeing to amend the law to grant citizenship to children born overseas to Malaysian mothers.
As rightly pointed out by one of our top constitutional experts - Prof Shad Saleem - the proposed amendment would “consign to the dustbin of history the intolerable gender discrimination between Malaysian men and women if their children are born abroad.”
Under the present law, if a child is born overseas to a Malaysian father and a foreign wife, the child is constitutionally entitled to inherit the father’s citizenship.
On the contrary, when a Malaysian mother - in a lawful marriage with a foreigner - gives birth overseas to a child from the foreign father, the current law in the country will disown the child.
Thus, the child’s citizenship has to follow his or her father’s foreign citizenship.
It goes without saying that until such a bewildering law is duly amended, the present law is evidently discriminatory. It infringes the constitutional protection of the fundamental rights to equal protection duly enshrined in Article 8 of the supreme law of the land.
On paper, the proposed amendment in sweeping gender discrimination under the rug would be highly commendable. Yet, there is a catch.
Many concerned citizens - especially the legal fraternity - are totally dumbstruck when they find out that along with such a positive amendment in removing gender inequality, the government also seeks to wipe out Section 1(e) of the Second Schedule Part 2 of the Federal Constitution which, in essence, protects the child from becoming stateless.
Be that as it may, should the government be adamant about removing the aforementioned section, it would potentially give birth to enormous impacts.
One thing is for sure, the removal would only augment the chronic problem of statelessness!
The proposed amendment is supposed to find workable solutions to the problem of statelessness. Apparently the government, with due respect, seems to be wandering in aimlessness!
It is difficult not to agree with a sensible comment which says that in proposing amendments to the present law “they should be crafted through the lens of having the effect of reducing statelessness and the best interest of the children conjunctively”.
Could not agree more. Unfortunately, the proposed amendment of removing Section 1(e) is simply doing the opposite!
Law inclined to protect the child
The government ought to keep in mind that Section 1(e) of the Second Schedule Part 2 of the Federal Constitution has been in our highest law of the law for a lofty goal. It, inter alia, seeks to duly protect innocent infants from becoming stateless.
In any law which has to do with the rights of a child - such as family law - more often than not the paramount consideration would be inclined to protect and safeguard the welfare of the child.
In my considered view, the provision of Section 1(e) is essentially a forbidden sanctuary whereby any government should never attempt to transgress! Be that as it may, the status quo ought to be preserved, not disturbed at all costs!
Let us retreat a little bit to the history of Section 1(e) of Second Schedule Part 2 of the Federal Constitution. Originally the 1957 Constitution conferred citizenship to anyone born on Malaysian soil under the principle of jus soli or birthright citizenship.
However, the jus soli genre of citizenship disappeared in 1962 when the Federal Constitution was amended requiring that one parent must be a citizen before Malaysian citizenship could be duly bestowed to a newborn child.
Section 1(e) was subsequently introduced into the Constitution to prevent the imminent danger of statelessness as a result of the 1962 amendment.
Finally, let us reiterate here loud and clear. Since Malaysia has duly signed and ratified the UN Convention on the Rights of the Child (CRC) in 1995, it goes without saying that it owes a sacrosanct duty to the global community in ensuring that any of its local laws are bereft of inhumane or degrading elements therein.
It is hoped that the government would not belittle its international obligation for unnecessary repercussions. - Mkini
MOHAMED HANIPA MAIDIN is a former deputy minister in the Prime Minister’s Department (Parliament and Law).
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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