PUTRAJAYA (Aug 5): The Court of Appeal (COA) on Friday (Aug 5) reversed a landmark High Court decision last year that allowed citizenship to be granted to children born overseas to Malaysian mothers with foreign spouses.
The COA bench, led by Justice Datuk Seri Kamaludin Md Said together with Justices Datuk S. Nantha Balan and Datuk Azizah Nawawi, in a split decision said children born of foreign mothers can be denied citizenship by the Home Affairs Ministry, National Registration Department (NRD) and the government.
All three judges read their judgements at the Palace of Justice here.
“The government appeal is allowed and the High Court decision is set aside,” Justice Kamaludin said.
The majority said the word “father” in the Federal Constitution under the Second Schedule, Part II, Section 1(b) cannot extend to “mothers”.
In their judgements they said only the Parliament can rewrite the Constitution for these amendments.
“The court cannot in its own whim and fancy change the Constitution,” Justice Kamaludin said.
While Justices Kamaludin and Azizah’s judgements were to quash the High Court decision, Justice Nantha had surmised 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 mother bloodline is inferior to father… Any which way one looks at it, this is discrimination against the mother,” he said.
Last year, the High Court had ruled that Article 8(2) on equality that prohibits discrimination based on gender would also mean that the word "father" in the Federal Constitution under the Second Schedule, Part II, Section 1(b) should also include mothers and that their children are entitled to citizenship by operation of the law.
The decision was made by Justice Datuk Akhtar Tahir in the case brought by Malaysian mothers whose children were born overseas and not able to get citizenship here.
The court ruled 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.