PUTRAJAYA (March 10): Overseas-born children of Malaysian women married to foreign men, who were below 18 years old before last year’s citizenship law amendment, will now be entitled to apply for citizenship via registration.

On Monday, the Federal Court recorded a consent order, following an agreement reached out-of-court between the Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers), six Malaysian mothers, and the Malaysian government, over a long-standing court battle over this citizenship issue.

Part of the order states that all children born overseas to Malaysian mothers with foreign husbands, under the age of 18 years, can now register for citizenship under Article 15 (2) of the Federal Constitution.

However, unlike with children born after the new Constitution (Amendment) Bill 2024 was passed in October last year, children born before this amendment will not be automatically granted citizenship (by operation of law). Instead, they will have to put in an application (for citizenship by registration), and, according to the agreed settlement, these children will have their applications granted, provided that they meet the same conditions as those that will be applied to children born after the amendment.

Their citizenship application will be subjected to Article 26(1) of the Federal Constitution, and adherence to Article 15 (2) which include the necessary supporting documents.

These articles, among others, touch on citizenship registration. 

The Bill has yet to be gazetted into law.

A five-member bench, led by Chief Justice Tun Tengku Maimun Tuan Mat, comprising of 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, recorded the order.

It should be noted that the children of the six mothers in this suit have since been recognised as Malaysian citizens in the midst of the prolonged court battle.

The court also made no order as to cost.

The appellants were represented by Datuk Dr Gurdial Singh Nijar, while senior federal counsel (SFC) Liew Horng Bin appeared for the government. 

Addressing the court at the onset of the proceedings, Gurdial said that parties had been engaged in intense negotiations to settle the matter. 

"After the last hearing, the AGC and solicitors (were engaged) in serious and intense negotiations. We have agreed on terms to settle this matter and (subsequently) withdraw the appeal," he said.

The appellants were appealing against the Court of Appeal's August 2022 decision that children born overseas to Malaysian women with foreign spouses were not entitled to be Malaysian citizens by operation of law.

In a two-one majority decision, the Court 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 Parliament can rewrite the Constitution for these amendments.

The COA had allowed the appeal by the Home Affairs Ministry, National Registration Department, and the government, reversing a landmark ruling by the High Court.

The High Court had ruled in September last year 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.

Following this, the government then tabled Constitutional amendments to the so-called Citizenship Law. 

Speaking to the media after the proceedings, Gurdial said that this settlement was a “great gift to women”.

“This is a great gift to women, two days after International Woman's Day. It is a historic judgement, a conclusion to crack decades-long discrimination,” he said. 

Activist Suriani Kempe, representing Family Frontiers, voiced her heartfelt appreciation to parliamentarians, civil society, and the public who had supported and rallied for the cause.

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