PUTRAJAYA (Dec 10): Parties affected by on-going statelessness and citizenship problems are given slightly more than a month by the Federal Court to resolve this issue, as the apex court agreed by consent to seek an adjournment of the matter.
A five-member bench led by Chief Justice Tun Tengku Maimun Tuan Mat, agreed to adjourn the hearing of four appeals by Tan Soo Yin, Azimah Hamzah, Mahisha Sulaiha Abdul Majeed, and Suriani Kempe (on behalf of non-governmental organisation Family Frontiers) and six others, against the National Registration Department and Malaysian government, to Jan 27, next year.
"The bench hopes you could sit down and resolve this matter," said Tengku Maimun.
Sitting with the CJ were Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, and Federal Court judges Tan Sri Nallini Pathmanathan, Datuk Nordin Hassan, and Datuk Hanipah Farikullah.
The adjournment was sought by all the counsels representing their clients where Tan was represented by Robert Mah, Azimah by Datuk Dr Gurdial Singh Nijar and Latheefa Koya, Manisha by Datuk Dr Cyrus Das, Suriani Kempe and the six others by Gurdial.
Initially, the plaintiffs had sought a longer period of adjournment.
This was because some of them had not yet obtained their citizenship, as the Dewan Rakyat had in October this year passed the new citizenship law called Constitution (Amendment) Bill 2024, which would be applied prospectively.
Senior Federal Counsel (SFC) Shamsul Bolhassan, who appeared with SFC Liew Horng Bin and Ahmad Hanir Hambaly @ Arwi for the NRD and government, indicated to the apex bench that the four appeals affected would likely have their citizenship status resolved, the others who have not been included in these cases would need to file their application with the NRD.
Following that, the Home Ministry and the NRD would consider the applications.
Shamsul read out from the Parliament Hansard on what had been stated by Home Minister Datuk Saifuddin Nasution Ismail, when winding up in Parliament, namely that the standard operating procedures (SOP) for handling citizenship applications have been approved by the Cabinet.
With the SOP in place, applicants will be guided on the submission process, such as being informed upfront about the required documents to avoid delays, Saifuddin said.
"Applicants will know early on if their documents are incomplete, reducing the risk of rejection after a long wait," Saifuddin had said.
The minister said the majority of citizenship applications fell under Articles 15A and 19(1) of the Federal Constitution, which pertain to citizenship by registration and naturalisation, such as children born out of wedlock and adopted children.
More than 32,153 applications approved since taking office, says Home Minister
Nevertheless, Saifuddin said that he has approved a total of 32,153 applications since taking office in December 2022, with 19,317 processed so far this year. He further pledged to resolve all pending citizenship applications within one year.
Although the Bill had been passed by the Dewan Rakyat, its status in the Dewan Negara is not known, nor when it is scheduled to be gazetted by the Yang di-Pertuan Agong.
At the moment, Azimah and Tan are the pending matter involving statelessness, as they do not fall under Article 15A and 19(1) of the Constitution, since both of them are said to instead fall under Section 1(e) of the Second Schedule of the Constitution, regarding every person born within the Federation who is not born a citizen of any country. This has left them stateless.
The Federal Court was initially scheduled on Tuesday to hear Tan, Azimah, and Mahisha’s appeals, as well as that of Suriani, the president of Family Frontiers and six other mothers who are Malaysian but are married to foreign spouses and had given birth to their children overseas.
The mothers are appealing against the Court of Appeal’s decision on Aug 5, 2022, that reversed the High Court's landmark decision which granted citizenship to their children.
In a two-to-one majority decision, the appellate court, in allowing the appeal by the Home Minister, the NRD, and the government, had ruled that the word “father” in the Federal Constitution under the Second Schedule, Part II, Section 1(b) could not extend to “mothers”, and that only the Parliament could rewrite the Constitution for these amendments,
The mothers and Family Frontiers were granted leave (permission) on Dec 14, last year, to have the merits of their application be heard in full, after the respondents did not object to leave being granted, with several questions of law posed before the bench for determination including:
- 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, and
- 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.
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