PUTRAJAYA (Dec 14): The Federal Court on Wednesday (Dec 14) allowed the appeal by Malaysian mothers whose children are born overseas and not granted Malaysian citizenship here to be heard on its full merits.
The bench, led by Chief Judge of Sabah and Sarawak Tan Sri Abang Iskandar Abang Hashim, allowed three questions posed in two appeals by Mahisha Sulaiha Abdul Majeed and Suriani Kempe, who is the president of the Association of Family Support & Welfare for Selangor and Kuala Lumpur (Family Frontiers), and six other mothers over a Court of Appeal (COA) decision in August.
The respondents in the appeal, the National Registration Department (NRD) director-general, the Home Minister, and the Malaysian Government, did not oppose the questions posed. The respondents were represented by senior federal counsels Ahmad Hanir Hambaly and Liew Horng Bin.
Initially Mahisha, who was represented by senior counsel Datuk Dr Cyrus Das and Raymond Mah, posed three questions of law, while Suriani and the others, who were represented by Datuk Dr Gurdial Singh Nijar, Abraham Au and Joshua Andran, posed 12 questions of law to be decided by the apex court.
However, after submissions by both parties and as the bench indicated that there should not be a lot of questions for the bench to decide, the court decided that the 10 questions posed by Suriani be subsumed or incorporated into Mahisha's questions.
This means that the questions posed by Mahisha would be adopted for determination, namely:
- 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;
- 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;
- 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.
However, the bench, which also included Federal Court judges Datuk Vernon Ong Lam Kiat and Datuk Mary Lim Thiam Suan, also ruled that Suriani’s two other questions can be raised during submissions on the merits.
Suriani’s questions concern the issue of dual citizenship: whether it has any bearing on the determination of citizenship, and concern Article 159 of the Federal Constitution: whether it can be construed to prohibit the court’s powers to interpret on fundamental liberties and whether citizenship can be brought up during submissions on the case.
In civil cases at the Federal Court, the losing party has to obtain leave (permission) from the bench before the merits of the appeal is heard based on questions of law posed to the apex court judges for determination.
Appeal follows COA reversing landmark decision
The appeal follows the COA reversing, on Aug 5, a High Court’s landmark decision last year that allows children born overseas to Malaysian mothers to receive citizenship in this country.
The appellate court in a two-to-one majority decision ruled that the word “father” in the Federal Constitution under the Second Schedule, Part II, Section 1(b) cannot extend to “mothers” and that only the Parliament can rewrite the Constitution for these amendments, in allowing the appeal by the minister, NRD and government..
“The court cannot in its own whim and fancy change the Constitution,” judge Datuk Seri Kamaludin Md Said, who led the majority, had said.
COA judge Datuk S Nantha Balan, who was in the minority, ruled that the article of the Constitution was discriminatory in saying that the mother’s bloodline is “inferior” to the father's bloodline.
“The primary question is whether there is a conflict. In my view, there is plainly and blatantly conflict. It’s saying the mother's bloodline is inferior to father.... Any which way one looks at it, this is discrimination against the mother,” he said in upholding the High Court decision.
The High Court in September last year ruled that Article 8(2) of the Federal Constitution on equality prohibits discrimination based on gender. This would mean that the word "father" in Section 1(b) should include mothers.
This is when judge Datuk Akhtar Tahir ruled the word "father" in the Constitution must be read to include mothers and that their children are entitled to citizenship by operation of the law.
He adjudged that Article 14(1)(b) of the Federal Constitution together with the Second Schedule, Part II, Section 1(b) of the Constitution, pertaining to citizenship rights, must be read in harmony with Article 8(2) of the Federal Constitution, which prohibits discrimination on the basis of gender.
There has been much criticism over the reversal and the Family Frontiers representatives have met several politicians to seek a resolution on the matter through a constitutional amendment.
Government lawyers had submitted that any amendment to the Constitution concerning citizenship must gain approval from the Rulers Council.