SEPTEMBER 29 ― The Private Member’s Bills of Datuk Seri Azalina Othman Said and four Pakatan Harapan (PH) MPs seeking to give Malaysian mothers the same rights as Malaysian fathers to pass on their citizenship to foreign-born children have been much lauded.
In “Private Member’s Bills to amend law on citizenship: Clear message to government” I wrote that the Bills send a clear message to the government that the amendments to the Federal Constitution are as simple as inserting two words ― “or mother” ― to each of Clause 1(b) and Clause 1(c) of Part II of the Second Schedule.
The government could adopt the Bills and present them to the Conference of Rulers. Better still to improve on the Bills.
In “Law Reform Commission should be on Azalina’s advice list to the prime minister” I referred to another provision in the Federal Constitution which discriminates between a father and a mother.
The provision is Article 161A (Special position of natives of States of Sabah and Sarawak) where clause (6)(b) says that “native” means “in relation to Sabah, a person who is a citizen, is the child or grandchild of a person of a race indigenous to Sabah, and was born (whether on or after Malaysia Day or not) either in Sabah or to a father domiciled in Sabah at the time of the birth.”(Emphasis added)
In the same piece, I referred to Article 8 of the Federal Constitution which generally prohibits discrimination against a person or class of persons, unless there is a rational basis for such discrimination.
In 2001, the word “gender” was inserted in Article 8(2) to comply with Malaysia’s obligations under United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and to reflect Malaysia’s commitment to eliminate discrimination against women.
CEDAW, which is based on the principles of equality and non-discrimination, has been ratified by more than 180 countries, including Malaysia.
Despite the amendment, noble as it was to enhance justice for women, the majority decision in the Federal Court case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021], ruled that since the Federal Constitution discriminates between a father and a mother, the court could not alter that discrimination.
The majority in the Court of Appeal on August 5 held that it was bound by the Federal Court decision, albeit by a majority, and therefore allowed the government’s appeal to overturn the High Court’s ruling allowing children born overseas to Malaysian mothers with foreign spouses to get Malaysian citizenship.
It shows that the amendment to Article 8(2) was, with the greatest of respect, ad hoc and piecemeal. It wasn’t a comprehensive revision of the law in order to eliminate discrimination against women or gender bias law.
The same may be said of the Bills submitted by Azalina and four PH MPS ― again with the greatest of respect. This informs us that the amendments to, or proposals to amend, the Federal Constitution need to be comprehensive, to achieve the aim of reforms at achieving justice for our women.
Comprehensive revisions oftentimes resulted from recommendations made by an independent law reform commission. The country needs it.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
