KUALA LUMPUR, Nov 17 — The Court of Appeal today fixed March 23, 2022 as the hearing date for the government’s appeal against a High Court decision which had recognised that Malaysian mothers’ overseas-born children have the right to be Malaysians.

Malaysian mothers married to foreigners have been facing hardship, as their children born abroad are not automatically entitled to be Malaysian citizens but have to apply for such citizenship in a process that is often lengthy with no guarantee of success and with potential for repeated rejections by the Malaysian government.

This is unlike Malaysian fathers married to foreigners, as their children born overseas are automatically entitled to be Malaysians under the Federal Constitution.

Previously, six affected Malaysian mothers with overseas-born children together with advocacy group Family Frontiers had on September 9, 2021 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 had on September 9 recognised Malaysian mothers as having the same right as Malaysian fathers under the Federal Constitution to pass on citizenship to their children born overseas, and had also ordered the authorities to issue the relevant documentation such as identity cards and passports to such children born to Malaysian mothers.

But the Malaysian government, home minister and the NRD director-general had on September 13 appealed to the Court of Appeal.

When contacted by Malay Mail, Abraham Au, one of the lawyers for the Malaysian mothers and advocacy group Family Frontiers, confirmed the hearing date as March 23, 2022 at the Court of Appeal.

This was after the government’s appeal came up for case management today at the Court of Appeal before deputy registrar Radzilawatee Abdul Rahman.

Apart from filing the appeal, the Malaysian government had on September 14 also applied to the High Court to stay or suspend the court decision for citizenship-related documents to be issued to the Malaysian mothers’ overseas-born children, until the appeal is heard and decided by the Court of Appeal.

The High Court had however on November 15 (this Monday) dismissed the Malaysian government’s stay application, and was reported to have noted that the mothers have experienced hardship and cannot wait indefinitely for the appeal process to be over as it would cause them continuing hardship.

The Malaysian mothers’ lawyer Au today told Malay Mail that the Malaysian government had on November 16 filed at the Court of Appeal for an application to stay the High Court’s September 9 decision.

He said the government had today also asked for an interim stay to preserve the status quo, until the Court of Appeal hears the government’s stay application.

Au said the Court of Appeal has fixed December 6 to hear the government’s application for the ad interim stay, and added that the Court of Appeal has fixed March 18 for the hearing of the stay application.

Lawyer Joshua Andran, who had attended the case management today for Family Frontiers, had previously confirmed to Malay Mail that the government’s appeal would be heard together at the Court of Appeal with another citizenship case involving a woman born overseas to a Malaysian mother.

The clear blue sky is visible over the Palace of Justice in Putrajaya on October 8, 2015. — Picture by Yusof Mat Isa

The other case to be heard together

Jasmine Wong, a lawyer for the other citizenship case, also confirmed to Malay Mail that the Court of Appeal has fixed March 23, 2022 to hear both her client’s case and the Family Frontiers’ case.

Wong said this after having attended an online case management for her client Mahisha Sulaiha Abdul Majeed’s citizenship case at the Court of Appeal before deputy registrar Habibah Haron.

Wong said the Court of Appeal had on November 2 previously said both cases should be heard together, further noting that case management for both cases was carried out this afternoon in the same Zoom session to have lawyers for both cases agree on the same hearing date.

Mahisha Sulaiha, who is now aged 24, 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 is seeking to be recognised as a Malaysian.

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. This appeal will be heard in March next year together with the Family Frontiers case.

What’s the current status of the government’s planned efforts for constitutional amendments?

Home Minister Datuk Seri Hamzah Zainudin had on September 22 told the Dewan Rakyat that his ministry had filed the appeal and also applied for a stay of the High Court decision, in order to prevent contempt of court and to not breach the Federal Constitution while the government pursues a proposed amendment of the Federal Constitution.

The minister said that the Home Ministry plans to seek for a new government policy to amend the Federal Constitution to make things easier for Malaysian mothers married to foreigners and who give birth overseas, while saying that such Constitutional amendment on citizenship matters requires consent from the Conference of Rulers in line with the Federal Constitution’s Article 159(5).

Hamzah on September 23 reiterated on Facebook that the rulers’ consent is needed before the government makes any resolutions to amend Constitutional provisions on citizenship, and on September 24 said the Cabinet had discussed the citizenship matter and had directed the attorney-general to raise it to the deputy Yang di-Pertuan Agong in the nearest time.

Based on Malay Mail’s checks of the Dewan Rakyat’s Hansard, de facto law minister Datuk Seri Wan Junaidi Tuanku Jaafar had on November 15 noted that the Cabinet had on September 24 agreed for the attorney general to present the court case by the six Malaysian mothers and Family Frontiers to the Conference of Rulers.

Wan Junaidi told MPs that the Pre-Council Meeting and Conference of Rulers are respectively scheduled on November 23 and November 24.

Wan Junaidi had also said that the proposed constitutional amendment on citizenship matters would need the Conference of Rulers’ consent based on Article 159(5), as well as the support of two-thirds of MPs based on Article 159(3).

Wan Junaidi expressed hope that such proposed constitutional amendments would be tabled in the Dewan Rakyat by next year. 

*Note: A previous edition of the story contained an error which has since been corrected.