KUALA LUMPUR, Dec 14 — The Federal Court today decided that Malaysian mothers will be able to proceed with their legal challenge against Malaysia's discriminatory laws, which had deprived their overseas-born children from automatically becoming Malaysian citizens.
In a unanimous decision, a three-judge panel led by Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim granted leave for the Malaysian mothers to proceed with their appeal.
The other Federal Court judges on the panel are Datuk Vernon Ong Lam Kiat and Datuk Mary Lim Thiam Suan.
The Federal Court was hearing two applications for leave to appeal in two similar citizenship cases, and allowed both cases to proceed to have their appeal heard by the Federal Court.
The first case involves an application to appeal by six Malaysian mothers and advocacy group Family Frontiers for leave to appeal against the Malaysian government, home minister and the National Registration Department (NRD) director-general.
The second bid for appeal is by Mahisha Sulaiha Abdul Majeed, a 25-year-old woman — born to a Malaysian mother and Indian national father in India — who wanted to be declared a Malaysian citizen, but has been unsuccessful in the courts so far.
In order to bring their appeal to the Federal Court to be heard, the Malaysian mothers and Mahisha Sulaiha would have to present their legal questions for the Federal Court to decide in their appeals.
After granting leave for appeal for both cases, the Federal Court decided to have the two cases share the same set of questions of law to be heard at their appeals, namely:
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?
In other words, those three questions revolve around the issue of whether citizenship laws in Malaysia's Federal Constitution should stop discriminating against Malaysian women, and whether Malaysian mothers' overseas-born children should also be entitled under the law to automatic Malaysian citizenship.
Currently, the citizenship laws discriminate against Malaysian mothers, as only the overseas-born children of Malaysian fathers are entitled under the law to automatic Malaysian citizenship. The only difference for such overseas-born children is whether their Malaysian parent is a father or mother.
The questions also highlighted the fact that the Malaysian government had amended the Federal Constitution's Article 8(2) in September 2001 to stop gender discrimination in Malaysian laws.
What the two cases are about
In the first case, the Malaysian mothers and Family Frontiers had in September 2021 won a court order in the High Court which ruled that Malaysian mothers' overseas-born children are entitled to Malaysian citizenship. But the Malaysian government had on August 5 won its appeal at the Court of Appeal via a majority decision.
The Malaysian mothers and Family Frontiers filed for leave to appeal at the Federal Court on August 26.
The Malaysian mothers and Family Frontiers were represented today by lawyers Datuk Gurdial Singh Nijar, Gan Pei Fern, Joshua Andran, Abraham Au, and Nik Nur Adawiyah.
Senior federal counsel Liew Horng Bin who represented the Malaysian government did not object to leave being granted for the Malaysian mothers' bid to appeal. The Federal Court did not allow Liew's proposed set of three additional questions of law to be added on to appeal, as the government was not the one which had filed for appeal.
In Family Frontiers' case, lawyers Datuk Malik Imtiaz Sarwar, Surendra Ananth, Khoo Suk Chyi and Wong Ming Yen appeared as amicus curiae for the Bar Council, while lawyer Tay Kit Hoo held a watching brief for the Human Rights Commission of Malaysia (Suhakam).
In Mahisha Sulaiha's case, the High Court had ruled against her. The Court of Appeal on August 5 dismissed Mahisha Sulaiha's appeal via a majority decision with two judges ruling against her and one judge ruling in her favour.
Mahisha Sulaiha filed for leave to appeal on August 17, and the Federal Court had allowed her and her parents to be present during the online hearing today via the Zoom platform.
The lawyers representing Mahisha Sulaiha today are Datuk Cyrus Das, Raymond Mah, Jasmine Wong, Eric Toh, while senior federal counsel Ahmad Hanir Hambaly and federal counsel Mohammad Sallehuddin Md Ali represented the National Registration Department director-general, the home minister and the Malaysian government.
During hearing today, Ahmad Hanir told the Federal Court that the government does not object to leave being granted for Mahisha Sulaiha's appeal.
Lawyer Denise Lim held a watching brief in both court cases for the Association of Women Lawyers (AWL), Women's Centre for Change (WCC), Sisters in Islam (SIS), and Justice for Sisters (JFS).
