Under Article 14(1)(b) under Part II Section 1(b) of the Second Schedule of the Federal Constitution, the word ‘father’ cannot extend to ‘mothers’, (this) is discriminatory. 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.
– Datuk S Nantha Balan, Court of Appeal judge
The citizenship news couldn’t have come at a better time for my Facebook pal Sophia Shaffie (not her real name), a Malaysian who moved to Philadelphia, US in 2003 together with her New Zealand-born husband.
Her love marriage fell apart eight years later and she now plans to return home with her two kids, both of whom are US citizens by operation of law. Following her divorce, Sophia applied for Malaysian citizenship for the children, but after waiting for nearly six years she received the dreadful news. – her application on behalf of her children were unsuccessful.
So, when I sent her a link to the news report on Putrajaya’s decision to amend the Federal Constitution to allow children of Malaysian women married to foreigners the right to citizenship, an elated Sophia couldn’t hide her feelings.
She voice called me last night on Messenger. “Thank God! God is indeed great. And thank you Datuk Seri Anwar. I didn’t think his so-called unity government would be any better than the previous governments. Anwar’s government indeed walks the talk. I am the happiest mum. I will reapply.”
The election manifestos of Pakatan Harapan and BN in the 15th general election pledged constitutional amendments to give both fathers and mothers the right to confer citizenship to their children.
There are hundreds of mothers facing a similar situation and they are happy that Anwar is committed to resolving this longstanding issue – prove of the unity government’s sincerity in upholding the principle of gender equality.
It’s now up to the MPs from across the political divide to push through the amendment bill when it is tabled in the current Parliament sitting.
Actually, the previous administration had laid the groundwork for the Federal Constitution to be amended through former de facto law minister Datuk Seri Dr Wan Junaidi Tuanku Jaafar.
As he explained in a WhatsApp message to me: “This present administration has just got to make a decision.”
The Constitution (Amendment) Bill 2023 on the citizenship will involve replacing the word ‘their father’ in Section 1(1)(d) and Section 1(1)(e) of Part I in the Second Schedule, and Section 1(b) and Section 1(c) in Part II of the same schedule with the phrase ‘at least one of the parents’ to enable Malaysian mothers to enjoy equitable rights.
The decision will grant automatic citizenship to children born abroad before or after Malaysia Day.
At present, Malaysia only provides automatic citizenship for children born overseas to Malaysian fathers. Malaysian mothers, however, need to apply for their overseas-born children to be registered as citizens with no guarantee of success.
On September 9 2021, the High Court ruled that Article 8(2) of the Federal Constitution which prohibits discrimination based on gender would mean that the word ‘father’ 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.
But following an appeal by the government, the Court of Appeal (COA) on August 5, 2022 reversed the High Court’s landmark decision.
Dissatisfied women’s organisations refused to let the issue rest and appealed to the highest appellate court, and on December 14, 2022 the Federal Court allowed the appeal by the Association of Family Support and Welfare Selangor & KL (Family Frontiers). The appellate court is expected to conduct case management on March 15.
Nevertheless, amending the constitution is but only an initial step to grant citizenship to the foreign-born children. There may be several other related issues to be studied in detail and resolved.
Wan Junaidi raises one pertinent point: “What about the issue of dual citizenship?”
Several countries like the United States and Britain grant automatic citizenship to a child born in their countries regardless of the citizenship status of the child’s parents which means if Malaysia’s Federal Constitution is amended the child will enjoy foreign and Malaysian citizenships – having the best of both worlds so to speak.
Dual citizenship will lead to other problems which Wan Junaidi says will “witness legal implications beyond one’s imagination which may lead to political conflicts”. The problem arises when a child is prosecuted for an offence in this country but which may not be considered a crime overseas.
The Anwar administration has to study all the implications carefully and find amicable solutions before the ‘big day’ in Parliament.
In the meantime here’s Wan Junaidi’s take on the proposed amendment:
“All the preliminary work, departmental study, engagement with immediate stakeholders, and communication to the King have been completed. This present administration has only got to make a decision.
The Yang di-Pertuan Agong is aware of this case and has expressed his concern. And I feel that only after the Federal Court has decided on the appeal by the Association of Family Support and Welfare Selangor & KL (Family Frontiers) against the Court of Appeal’s decision to set aside the High Court ruling that Article 8(2) of the Federal Constitution on equality prohibits discrimination based on gender should the government brief the King and Conference of Rulers on the legal position of the issue.
It’s not conflict of laws on criminal matters alone, but issues of inheritance of Malay lands and fraid (Islamic division of properties) might arise in states like Kelantan, Terengganu, Negeri Sembilan and Johor.
The same might happen to the contentious issue of native customary rights land in Sarawak and Sabah. These are all very contentious matters.
The Federal Court has yet to fix a hearing date for the appeal but is expected to conduct case management on March 15.
If the amendment goes ahead, it would mean that at birth, a child born to a Malaysian mother not in the federation will automatically be given a Malaysian citizenship under Section 1(1)(d) and Section 1(1)(e) of Part I in the Second Schedule, and Section 1(b) and Section 1(c) in Part II of the same Schedule.
If the birth takes place in a country that gives automatic citizenship to a child born in that country irrespective of the parent’s citizenship status then the child will get both that country citizenship and the Malaysian citizenship. A lot of countries practise this principle today, including the UK and the US, which give a child born in these countries automatic citizenship.
These children since birth until the age of 21 under (UK and US laws), or at least in several Commonwealth countries, legally cannot decide on his/her citizenship status until he/she is 21 years old.
So accordingly, for the first 21 years of the child’s life he/she holds dual citizenship and under the protection of the laws of both countries.
That was why I advised the then PM to wait until the Federal Court appeal is disposed of.
There might be a conflict of law on protection and rights, though quite rare.
Let’s take the following case as an example:
Suppose child A is born in the US and after living there for years, decides to reside in Malaysia; he or she is arrested for unnatural lust under section 377 of the Penal code which is a serious offence in Malaysia, but which is not an offence in the US and in many countries.
The moment he is arrested, the US ambassador may seek his release; you can’t blame the ambassador for trying to protect an American citizen.
Since child A is also a US citizen, our foreign minister cannot advise the US ambassador not to interfere.
The question now is: are we going to release this person who is also a Malaysian citizen and clearly in breach of Malaysian law, which is not an offence in the US?
We will witness legal implications in this country beyond one’s imagination which may lead to political conflicts. Do we want this to happen?
We must try to avoid this dual citizenship issue. It’s very delicate, and even dangerous to Malaysia.
Remember this, whatever we do, walk the talk, keep our promises, fulfil our manifesto; I have no problem with this. But as responsible leaders we should not do or ignore what might burden the country and even the future generation.”
The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.
