KUALA LUMPUR (Nov 15): The High Court on Monday (Nov 15) dismissed the government's application to stay the court's decision in September that allows Malaysian mothers to seek and apply citizenship for their children who were born overseas.
The decision was made by Justice Datuk Akhtar Tahir who heard the government's application for a stay online.
Justice Akhtar in his decision said the government's position is contradictory as it says an amendment to the Federal Constitution which would grant mothers this right must first be approved by the Conference of Rulers.
"This presupposes that the amendment is necessary. However, there is no question of an amendment because the court has already decided that mothers have this right under the Federal Constitution.
"Further, if the amendment goes through, there is no question of retracting any documents issued to the mothers as directed by the court," the judge said.
Justice Akhtar also ordered the government to pay RM5,000 costs to the mothers and six others who made the application.
On Sept 9, Justice Akhtar in a landmark decision ruled that children born overseas to Malaysian mothers are eligible to gain citizenship.
Initially, such rights were accorded to Malaysian fathers only.
Lawyer Joshua Andran, who represented the six mothers and rights group Family Frontiers who had successfully won the suit against the government, confirmed the decision by Justice Akhtar on Monday morning.
Justice Akhtar also said that the mothers already waited long enough and a stay will prejudice the initial decision and cause the mothers prolonged hardship.
“They cannot wait indefinitely for the appeal process to be over. This will prejudice the plaintiffs and cause them continuing hardship,” Justice Akhtar said.
He added that if the government intends to amend the Federal Constitution in favour of mothers in line with the High Court decision, it should not impede the mothers from applying citizenship for their children.
“They should not put any hurdles in the pathway of the mothers,” Justice Akhtar said.
In September, Home Affairs Minister Datuk Seri Hamzah Zainudin said that the government had applied for a stay of execution to buy time to amend the Federal Constitution via the Conference of Rulers.
He said the government had decided to appeal against the High Court decision, so that a stay of execution can be sought to avoid being charged with contempt of court for the delay in implementing the court orders.
“We also want to amend the [Federal] Constitution to facilitate Malaysian women married to foreign spouses whose children were born abroad,” he said.
Hamzah added that while he sympathises with the mothers who are in this predicament, he had also taken an oath to uphold the Federal Constitution and was therefore bound by the current constitutional provisions.
Earlier on Monday, lawyer Joshua said that they (the plaintiffs) were very encouraged by the High Court's decision and reasoning.
“The judge expressly recognised the hardship faced by the Malaysian mothers, their children and the family units, which would continue if a stay of the judgement is allowed,” he said.
“One of the children involved in this case is already 17 years old. He has been deprived of Malaysian citizenship all his life. How long more should these Malaysian families be asked to wait?
“On the other end of the spectrum, we have families with young children, babies, who face hardship in entering Malaysia. Many family units are separated because of these travel restrictions,” he added.
Besides Joshua, the plaintiffs were led by Datuk Dr Gurdial Singh Nijar, Ngeow Chow Ying and Abraham Au, while senior federal counsel Liew Horng Bin appeared for the government.