KUALA LUMPUR, Nov 2 — The Court of Appeal today did not hear a case where a woman born in India to a Malaysian mother is seeking citizenship, as it agreed that this court case should be heard together with another case where Family Frontiers and six Malaysian mothers had sought for equal rights to pass on their Malaysian citizenship to their children born abroad.

The Court of Appeal was initially scheduled to hear the appeal by India-born Mahisha Sulaiha Abdul Majeed against the High Court judge Datuk Seri Mariana Yahya’s August 2020 rejection of her bid to be recognised as a Malaysian citizen.

But before the Court of Appeal could hear Mahisha Sulaiha’s appeal, her lawyer Datuk Cyrus Das brought to the judges’ attention that there is another case involving six Malaysian mothers with similar legal issues and which would be coming up for hearing in the Court of Appeal too.

Cyrus said he was prepared to proceed with the appeal hearing that was scheduled today, but noted that there were two separate High Court decisions in both his client’s case and the six Malaysian mothers’ case that were seen as conflicting.

Noting that High Court judge Datuk Akhtar Tahir’s decision in the six Malaysian mothers’ case dealing with the "same issue” as Mahisha Sulaiha’s case, Cyrus said he, as well as the Attorney General’s Chambers, would likely be making references to Akhtar’s decision and suggested that the Court of Appeal in this case would also likely have to make reference or comment on whether Akhtar’s decision is correct or not. 

Cyrus then asked if both his client’s case and the six Malaysian mothers’ case at the Court of Appeal should be heard together.

"We are wondering and leaving it in the hands of the court, whether or not both cases should not be heard together,” he said.

Cyrus had noted that his client’s case involves an important issue arising for the first time in the Court of Appeal, namely whether the Federal Constitution’s Article 8 which protects against gender discrimination should be applied to citizenship provisions in the Federal Constitution — which now only provides for a Malaysian "father” to be able to pass on citizenship to their overseas-born children — to enable the word "father” to be read interchangeably with the word "mother”. 

Senior federal counsel Liew Horng Bin, who represents the Malaysian government both in this case and in the six Malaysian mothers’ case, confirmed that the six mothers’ case is now scheduled for case management on November 10 at the Court of Appeal.

Senior federal counsel Ahmad Hanir Hambaly@Arwi said the Attorney General’s Chambers has no problem with either option of having the two court cases heard together or one after another.

Cyrus also suggested that both cases be heard by the same panel of judges to avoid the risk of two differing decisions at the Court of Appeal level.

Court of Appeal judge Datuk Gunalan Muniandy also noted that there would be an overlap of issues and possibly conflict of decision on the same issue, if the two cases are not heard together.

After hearing from both sides, Court of Appeal judge Datuk Seri Kamaludin Md Said who was chairing the three-judge panel today then said it would be best for this case to be heard together with the other case, to avoid overlapping or conflicting issues. 

Kamaludin had earlier also referred to Cyrus’ comments that it may not be fair to those in the other case, while also noting that it may mean a pre-determining of issues which would also be not fair to the panel that would be hearing the other case.

Kamaludin then fixed February 16 next year as the tentative hearing date for Mahisha Sulaiha’s appeal, but said this would be subject to directions from the President of the Court of Appeal Tan Sri Rohana Yusuf on which panel will hear the case.

Court of Appeal judge Datuk Vazeer Alam Mydin Meera, who was on the panel today, had similarly noted that it would be the President of the Court of Appeal who gives instructions on whether the two cases are to be heard together.

Mahisha Sulaiha’s case is now fixed for case management also on November 10, which will be the same date when the six Malaysian mothers’ case comes up for case management.

Besides Cyrus, lawyers Raymond Mah and Jasmine Wong also represented Mahisha Sulaiha.

Mahisha Sulaiha who is now aged 24 and her parents also attended the court proceedings today that was conducted online through the video-conferencing app Zoom.

Also representing the government today was federal counsel Mohammad Sallehuddin bin Md Ali.

Lawyer Mohd Ridhuan Md Kamal held a watching brief today for the Malaysian Bar.

Mahisha Sulaiha was born to her Malaysian mother and Indian national father in India, while her two younger siblings who were born in Malaysia are Malaysian citizens.

Mahisha Sulaiha had on December 2, 2019 filed her lawsuit via an originating summons against the National Registration Department director-general, the home minister and the Malaysian government, to seek for declarations including that she is a Malaysian citizen based on constitutional provisions and as her mother is a Malaysian, and to seek for a Malaysian identity card and citizenship certificate to be issued to her.

Following the High Court’s August 19, 2020 dismissal of her lawsuit, Mahisha Sulaiha has appealed to the Court of Appeal.

Family Frontiers, which had together with six Malaysian mothers won the lawsuit on Thursday last week, said it was ‘appalling’ that the government had made the move to appeal the court decision. — Picture courtesy of Family Frontiers

As for the Family Frontiers and six Malaysian mothers, they had on September 9 this year succeeded in their lawsuit in the High Court against the Malaysian government, the National Registration Department director-general and the home minister. The High Court there had recognised Malaysian mothers would have the same right as Malaysian fathers of passing on citizenship to their children born overseas. 

The Malaysian government, the National Registration Department director-general and the home minister have however on September 13 filed an appeal at the Court of Appeal. 

Separately, the High Court will also on November 15 be hearing the government’s application to stay or suspend a court order for identity cards and passports to be issued to the Malaysian mothers’ children, until the appeal is heard.