(Updated)

Aug 5 verdict on govt's appeal on citizenship of children born overseas to Malaysian mothers

Aug 5 verdict on govt's appeal on citizenship of children born overseas to Malaysian mothers
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PUTRAJAYA (June 22): The Court of Appeal on Wednesday deferred delivering its decision on the appeal by the Home Ministry, National Registration Department (NRD) and the government over a landmark High Court decision last year that allowed citizenship to be granted to children born overseas to Malaysian mothers with foreign spouses to Aug 5.

The decision was deferred before a bench presided by Justice Datuk Kamaludin Md Said, who requested the verdict be delivered in open court for the benefit of all parties including those on watching brief, the media and not via online zoom application.

Justice Datuk S Nantha Balan and Justice Datuk Azizah Nawawi made up the rest of the three-member bench, which had earlier fixed Wednesday (June 22) to deliver its decision after hearing submissions on the appeal in March.

The decision was deferred following an additional submission made by senior federal counsel (SFC) Liew Horng Bin for the government and others in citing the recent Federal Court judgement in the Dhinesh case last April to reinforce the point that the amendment to Article 8(2) of the Federal Constitution should not include Article 14 regarding citizenship.

In reading a passage from the Dhinesh judgement which was affirmed in a Federal Court case of Nivesh Nair, Liew asserted "constitutional amendment may well be required for desirable development".

"However, this cannot be extended to fundamental provisions or the essential features of the constitution, as there would then result in a new constitution rather than constitutional improvement. Hence the provisions of Article 4(1) which preclude inconsistency with the Federal Constitution in its entirety," the SFC added.

"This judgement reinforces our point that when the Sept 2001 amendment was made on Article 8(2) that stipulates there shall be no discrimination against citizens regardless of religion, race, descent, place of birth or gender in any law does not encompass citizenship as intended by the home minister then during the amendment," Liew said.

As shown on parliament hansard with regard to the 2001 amendment as tabled by Tan Sri Rais Yatim then had limited its scope further with regard to the issue of citizenship.

Liew argued that the Dhinesh judgement which was affirmed meant that the awarding of citizenship is also a basic feature and hence, the amendment to Section 8(2) cannot include or mean an amendment to Article 14 which denotes the citizenship of the children will be applied to Malaysian fathers and not mothers as stipulated.

"It cannot be amended or impermissible to interchange the word father to include mothers. If parliament cannot amend it (Article 14) — what more the court," Liew asserted.

At the last session, he also argued that citizenship issues were among the four issues requiring additional approval from the Conference of Rulers besides the go-ahead from parliament.

The others were the exclusive rights of the Malays, the sovereignty of the Malay Rulers, and also the national language, namely Bahasa Melayu.

Liew was arguing in the government's appeal against the High Court decision last year that allowed children born overseas to Malaysian mothers to be allowed to gain Malaysian citizenship as the word father in Article 14 should also denote mother, as Article 8(2) did not allow discrimination based on gender.

He had previously argued that High Court judge Justice Datuk Akhtar Tahir, who made the decision, had in effect rewritten the constitution and actually changed the government's policy which is something the court is not empowered to do.

Judgement 'should be looked as a whole'

Meanwhile, Professor Datuk Dr Gurdial Singh Nijar who represents six Malaysian mothers and non-governmental organisation Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) which won the case at the High Court said the Dhinesh judgement should be read as a whole and not lift portions of a passage.

He added that if one were to read what Liew had submitted then no amendment to the constitution at all is possible.

"If we look at the whole judgement it is very clear that amendment is allowed if it is consistent with the basic structure and does not create something completely new. Improvement to the constitution is allowed as with the 2001 amendment.

"The 2001 amendment does not alter the fundamental identity and does not remove or abrogate it as it (citizenship) is a fundamental right. The amendment of Article 8(2) is consistent with amendments that Malaysia has to adhere to being part of the international community and what was stipulated in 1957, can be changed according to the times as with the 2001 amendment.

"The Article 8(2) amendment is consistent and an improvement which is allowed and when it is allowed the amendment prevails and Article 8 can override Article 14. It is the role of the courts to implement," he said, adding that the amendment to Article 8(2) reconciles with Article 14(1)(b) of the constitution.

"The original framers put fathers in 1957, and this must be reconciled in this day and age," he said.

Gurdial implored the court that it should look after the affairs and protection of the child, as although some may get citizenship of their father, this is not always the case, as there was one case in which the child was born in China but the child did not get Chinese citizenship.

He added there are cases in which the siblings of the child are recognised as Malaysians as they were born here but another who was born overseas cannot obtain citizenship.

"One has to look at the impact as the whole family structure could be destroyed as seen with the Covid-19 pandemic where a child cannot be here to receive education and medical as citizens as they cannot enter the country. Family and children had to be separated due to this," he said.

SFC argument is 'astonishing'

Another senior counsel, Datuk Dr Cyrus Das, who appeared with Robert Mah for one of the Malaysian mothers, described Liew's argument as quite astonishing as the government is saying now that the 2001 amendment should not happen at all or is invalid.

"Is he saying now the amendment to gender discrimination is invalid and should exist. This is a new point and is untenable. We say the citizenship provision [to children born of Malaysian mothers] as what the High Court ruled is correct as that is how the case is being advanced," he added.

"Article 14 [regarding citizenship] should be read in a non-discriminatory way," Das said.

Liew clarified that it is the government's position that the 2001 amendment is valid but is only asserting that it does not apply to citizenship in this case.

Meanwhile, Family Frontiers president Suriani Kempe in a statement later said that "discriminatory policies by the government are clearly fracturing #KeluargaMalaysia, and it is time to end this".

"It is time for Malaysian mothers to have equal rights with regard to conferring citizenship on their children, regardless of where they were born. While we continue to wait for the Court of Appeal's decision, the government must expedite the issuance of citizenship documents to overseas-born children of Malaysian mothers.

"It is not to be forgotten that this is a case which determines the welfare of children, the right of women to confer citizenship and #KeluargaMalaysia. In line with its international obligations, the government must uphold equal rights of Malaysian women and protect their children."

Former deputy minister of women, family and community Development, Hannah Yeoh, said the NRD is funded by taxpayers and she does not think taxpayers want Malaysian mothers to suffer.

"The NRD should be serving the people. We are looking at survivors of domestic violence, at parents who have been separated from their kids. If the prime minister is serious, he should instruct the home minister to follow his own slogan of #KeluargaMalaysia. We want to see these children's suffering end," she said.

Read also:
June 22 decision for Govt appeal against citizenship for overseas-born children of Malaysian mums with foreign spouses
Putrajaya loses bid to stay High Court ruling to grant citizenship to kids born overseas to Malaysian mothers
Court rules children born overseas to Malaysian moms also eligible for citizenship

Surin Murugiah