KUALA LUMPUR, June 23 — The Court of Appeal will decide on June 22 if Malaysia’s citizenship laws can effectively be interpreted to enable Malaysian mothers’ overseas-born children to be entitled to Malaysian citizenship as a right, just like the overseas-born children of Malaysian fathers.

Court of Appeal judge Datuk Seri Kamaludin Md Said, who chaired a three-man panel fixed the decision after hearing lengthy arguments stretching more than four hours today.

The other two judges on the panel today are Court of Appeal judge Datuk Azizah Nawawi and Datuk S. Nantha Balan.

Today, the Court of Appeal heard arguments by lawyers in two appeals involving citizenship provisions in Malaysia’s Federal Constitution and Malaysian mothers whose overseas-born children were denied the automatic right to Malaysian citizenship.

The first appeal is by the Malaysian government against the High Court’s September 2021 decision which recognised that Malaysia’s citizenship laws discriminated against women and ruled that Malaysian mothers whose children are born overseas should also be entitled to Malaysian citizenship.

The High Court had ruled in favour of six affected Malaysian mothers with overseas-born children and advocacy group Family Frontiers in their lawsuit against the Malaysian government, the home minister and the National Registration Department director-general.

The second appeal is by Mahisha Sulaiha Abdul Majeed, a woman — born to a Malaysian mother and Indian national father in India — who wanted to be declared a Malaysian citizen but was unsuccessful at the High Court.

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

What the Malaysian government argued today

The key provisions in the Federal Constitution at the heart of the Court of Appeal hearing today include Article 14(1)(b), which provides that every person born on or after Malaysia was formed in 1963 are "citizens by operation of law” or entitled to Malaysian citizenship as a right, if they fulfill the conditions in Part II of the Federal Constitution’s Second Schedule.

Two of the conditions in Part II of the Second Schedule — Section 1(b) and Section 1(c) — only mention having a Malaysian "father” as a requirement for overseas-born children to be a Malaysian, while Article 8(2) of the Federal Constitution states that there shall be no gender discrimination against Malaysians in any law.

In the Malaysian government’s appeal against automatic citizenship for Malaysian mothers’ overseas-born children, senior federal counsel Liew Horng Bin argued that the High Court was wrong to decide that the word "father” in these citizenship provisions can be interpreted to include "mother” in order to harmonise it with Article 8(2).

High Court judge Datuk Akhtar Tahir had in September 2021 said the court was not seeking to change the policy or rewrite the law already enacted by the Malaysian government, but that it was merely trying to apply the existing law and policy in a way which would provide a remedy to the affected Malaysian mothers’ grievances.

Among other things, Liew argued that the High Court had erred by allegedly having rewritten the Federal Constitution and having allegedly changed the government policy, while also arguing that the High Court was wrong in issuing a mandatory injunction — in the form of directing the Malaysian government to issue citizenship papers to Malaysian mothers’ overseas-born children in compliance with the High Court’s declaration that they are Malaysian citizens.

Later when asked by judge Nantha Balan if the government would still comply with a High Court’s declaration that Malaysian mothers’ overseas-born children are citizens if there was no mandatory injunction telling the government how to give effect to the decision, Liew said: "Of course, without a doubt.”

Arguing that it was not considered discriminatory back in 1957 to only use the word "father” in some of the country’s citizenship provisions, Liew also said the framers or those who had drafted Malaysia’s Federal Constitution decades ago had intended for the word "father” to not include "mother”. He also highlighted that some of Malaysia’s citizenship provisions had specified "whose parents one at least” as a requirement, saying this indicated that the use of the word "father” was deliberate from a historical point of view.

Members of Family Frontiers hold up placards demanding equal citizenship rights for Malaysians at the Kuala Lumpur High Court April 27, 2021. — Picture by Hari Anggara

Despite saying that the Malaysian government was not denying that Malaysian mothers had waited for many years without a response from the government when applying for their overseas-born children’s citizenship, Liew insisted that such children are not entitled to Malaysian citizenship automatically under the Article 14(1)(b) and Section 1(b) but said they should apply for citizenship by registration under Article 15(2).

Unlike Article 14(1)(b) where Malaysian citizenship is automatic if all conditions are fulfilled, Article 15(2) would depend on the federal government’s decision on whether to register any person ― aged below 21 and who has at least one Malaysian parent ― as a Malaysian citizen, if the person’s parent or guardian applies for the citizenship registration.

Malaysian mothers who apply under Article 15(2) have been reported to wait for years for a government decision (which may include rejections without any reason given), and would then be left with reapplying again under Article 15(2) with the same lengthy wait and with the same uncertainty in results — if their child has not hit the age limit of 21.

Court of Appeal judge Kamaludin at this point remarked that the government must at least set some guidelines on how such citizenship applications can succeed, as there is no such criteria available and Malaysian mothers have to resort to come to court. Liew took note of this observation and said he would convey it to the relevant authorities.

Liew also argued that even after Article 8(2) was amended in the year 2001 to disallow gender discrimination, the alleged original intent of the Federal Constitution’s framers to not include "mother” in references to "father” for the citizenship conditions had continued on.

Arguing that the Federal Constitution allows for the discrimination against mothers in citizenship provisions and that there would be no conflict of law requiring a harmonious interpretation with Article 8(2) to include "mother” under the word "father”, Liew argued it is not for the courts to "modernise” the Federal Constitution when the original intentions of its framers were clear.

Liew also cited Article 159(5) when arguing that any amendments to four key areas of the Federal Constitution covering citizenship, the national language, the special position of the Malays and the sovereignty of the rulers cannot be made without the consent of the Conference of Rulers, on top of the Article 159(3) requirement for two-thirds majority support in both the Dewan Rakyat and Dewan Negara.

Liew concluded his arguments by citing the Hansard’s records on January 31, 1962 on what the late Tunku Abdul Rahman — who was then the prime minister — had said, before telling the Court of Appeal that the remedy for Malaysian mothers would be by voting in elections and for the Malaysian government to make amendments to the law in Parliament.

"The answer given by the prime minister on January 31, 1962 — ‘the best safeguard is for the people always to elect a just, merciful and sympathetic government like the Alliance government’ … So the then PM made this remark, so the point I want to make is the answer lies in Parliament and in the case of the respondents, the ballot box,” he said.

Two women hold up a banner questioning if Malaysian mothers have different citizenship status from Malaysian fathers. — Picture courtesy of Family Frontiers

Datuk Gurdial Singh Nijar, a lawyer representing the six Malaysian mothers and Family Frontiers, said it is open for the courts to interpret the word "father” in the citizenship provisions to include "mother”, as the provisions like Section 1(b) do not expressly state that mothers are excluded.

Gurdial also argued that fundamental rights such as equality under the law via non-discrimination cannot be just taken away impliedly, arguing that the Federal Constitution should have expressly stated that the protection against gender discrimination does not apply to the citizenship provisions if that was the intention.

He also said it would be quite hurtful to suggest Malaysian mothers are self-seeking, pointing out that there are Malaysian mothers whose overseas-born children are already in Malaysia or wanting to come back to Malaysia while facing all sorts of problems such as being separated or divorced from their foreigner husbands or having children who have lived in Malaysia all their lives.

For overseas-born children of Malaysian mothers that are already in Malaysia, Gurdial highlighted their difficulties such as having to renew annually the approval to be allowed to attend school in Malaysia, while at the same time being directed by the authorities to apply for citizenship under Article 15(2) but having to wait even up to nine or 10 years or indefinitely only to be met with citizenship application rejections.

"The reason why we come to court is, Article 15(2) — you apply, you are rejected. Some of them have spent endless hours in trying to seek this, 10 years. Whereas fathers get automatically in two or three days, isn’t this discrimination? Doesn’t this need to be rectified?” he asked, highlighting the "trauma” that Malaysian mothers face in their years of citizenship bid for their overseas-born children as compared to the quick process of several days for Malaysian fathers’ overseas-born children.

For Malaysian mothers married to foreigner husbands, Gurdial questioned what the logic for such mother’s children is to be entitled to Malaysian citizenship if born in Malaysia, but then being denied citizenship if the mother had crossed over the border into another country like Thailand and given birth there.

"What is the logic? So we must have a fair and just result. You cannot put the predicament of the child into this completely unfair, unbalanced, discriminatory matter,” he said.

Gurdial pointed out that the High Court had already asked the Malaysian government via the Attorney General’s Chambers to explain this discriminatory practice against Malaysian mothers, but noted that the government did not give any explanation and argued an inference can then be made that there is no reasonable explanation to justify this.

Pointing out that the Federal Constitution is a living document and that life should be breathed into it instead of going back to the framers of the Federal Constitution, Gurdial at one point also said: "We cannot be trapped in a time warp.”

He argued that the conflicting positions in Article 8(2) which disallows gender discrimination and the citizenship provisions which only mentioned "father” could be resolved by interpreting them harmoniously to enable Malaysian mothers to also pass on their citizenship to their overseas-born children.

Gurdial also highlighted that Section 2(94) of the Federal Constitution’s Eleventh Schedule on how the Federal Constitution is to be interpreted had provided for words referring to the "masculine gender” to also "include females”, arguing that this meant the word "father” in the citizenship provisions could be read as also including "mother”.

Malaysian mothers with their children who are still waiting for their citizenships to be approved by the National Registration Department in Putrajaya, February 21, 2022. — Picture by Shafwan Zaidon

Datuk Cyrus Das, a lawyer representing Mahisha Sulaiha whose case was heard together, went on to highlight that there is nothing to stop Article 8(2) — the protection of Malaysians from gender discrimination — from being used to interpret the citizenship provisions of Section 1(b).

Cyrus explained that there are three exceptions or three categories of exclusion on Article 8(2) where the anti-gender discrimination provision will not apply, but pointed out that the citizenship provisions under Article 14(1)(b) do not fall under any of these exceptions.

These three categories would be Article 8(5) which provides that discrimination is allowed for six types of laws listed, Article 8(2)’s mention of "except as expressly authorised by this Constitution”, and reasonable classification exclusion based on case law.

He noted that Article 8(5) did not include citizenship provisions as a law that would be allowed to have discrimination, while Article 14 does not expressly state that Article 8 will not apply.

Asked by judge Nantha Balan on what would have happened if the Malaysian government had amended Article 8(5) to include citizenship provisions at the same time as the 2001 amendment to Article 8(2) to disallow gender discrimination, Cyrus said that would be the end of the Malaysian mothers’ case and agreed that the government should have done that if they had that in mind.

But without any law that expressly states there can be gender discrimination in Malaysia’s citizenship provisions, Cyrus argued that the Article 8’s guarantee of equality before the law has an all-pervading influence that meant it should apply to all provisions including the citizenship provisions.

Responding to Liew’s arguments about the need for the Conference of Rulers’ consent for amendments to citizenship provisions, Cyrus said that such arguments were a "complete misunderstanding” as the Malaysian mothers and his client are not seeking for the citizenship laws to be amended, but were asking for the Federal Constitution to be interpreted in accordance with constitutional guarantees.

In arguing why the application of Article 8(2) would mean the word "father” should be read interchangeably with the word "mother” for citizenship by operation of law under Section 1(b), Cyrus had asked "Why should the bloodline of the father be any superior to the bloodline of the mother?” and later added "Article 8(2) ensures the status of the mother is not subordinate or relegated to a status below that of the father.”

As for Liew’s argument that Malaysia had expressed reservations on the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) or decided not to apply Cedaw provisions on enabling mothers to pass on their citizenship to their children, Cyrus said such reservations are a political stand taken by the government of the day and are not binding on the courts, arguing that the courts should interpret the Federal Constitution as it stands.

Merdeka babies sleep in their cribs in Hospital Kuala Lumpur August 31, 2018. — Picture by Razak Ghazali

Senior federal counsel Ahmad Hanir Hambaly, who was representing the government in Mahisha Sulaiha’s case, adopted the arguments presented by Liew and did not add further arguments.

The other lawyers representing the six Malaysian mothers and Family Frontiers are Ngeow Chow Ying, Gan Pei Fern, Joshua Andran, Loh Suk Hwa, Abraham Au Tian Hui, Denishia Rajendran, while lawyers who held watching brief in this case are Vilasini Vijandran for the Bar Council and Tay Kit Hoo for the Human Rights Commission of Malaysia (Suhakam).

The other lawyers representing Mahisha Sulaiha today are Raymond Mah, Jasmine Wong, Eric Toh, while federal counsel Mohammad Sallehuddin Md Ali also represented the National Registration Department director-general, the home minister and the Malaysian government.

In a statement following the court hearing, Family Frontiers today pointed out that the denial of equal rights for Malaysian mothers to pass on their citizenship to their children means that their plight continues on.

Family Frontiers said thousands of Malaysian women "endure a lifetime of uncertainty and increased vulnerability to violence and abuse”, and many live in constant fear and anxiety of being separated from their children.

"Meanwhile, children of Malaysian women continue to be denied equal access to affordable healthcare, education, and the right to remain in the country with their family,” it said.

"The government has a golden opportunity to undo years of discrimination against Malaysian women by withdrawing the appeal against the High Court decision and implementing it without further delay. Instead, the government’s appeal sends a clear message that it believes women occupy an inferior legal status to that of Malaysian men.

"Malaysia’s declarations and commitments to gender equality in the international arena hold no meaning as it becomes increasingly clear that the government seems to be the main obstacle to Malaysian women’s equality,” it added, pointing out that the Malaysian government such instead uphold the rights of Malaysian women and their children as Malaysia is a signatory to two United Nations (UN) international agreements (UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the UN Convention on the Rights of the Child (CRC)).

Apart from having pursued the appeal against the High Court’s recognition of Malaysian mothers’ overseas-born children as Malaysian citizens, the Malaysian government at the same time has started studying potential amendments to the Federal Constitution.

In a December 1, 2021 written parliamentary reply to Bukit Gelugor MP Ramkarpal Singh, Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar said that the government had formed a committee — as agreed on November 23 by the Conference of Rulers — to study proposed amendments to Article 14(1)(b) regarding overseas-born children of Malaysian mothers, as well as study the laws and practices in other countries, carry out consultations with stakeholders and analyse the results of discussions with stakeholders.

Wan Junaidi had said the committee expects to finalise its findings within a six-month period before presenting it to the Cabinet for approval and subsequently to the Conference of Rulers for assent.

If the six-month period is calculated from November 23, this could mean the committee’s results may be available by late May 2022 ― which would be about nine months since the High Court’s September 2021 decision that the Malaysian government could have chosen to give effect to instead of appealing.