PUTRAJAYA (Aug 20): The trial involving Malaysian mothers who are seeking citizenship for their children born overseas, which is scheduled for next Tuesday (Aug 24) at the Kuala Lumpur High Court, will proceed before Justice Datuk Akhtar Tahir.
The hearing date stands as the Court of Appeal today dismissed an appeal by the federal government to strike out the originating summons (OS) filed by seven plaintiffs, comprising Family Frontiers president Suriani Kempe, Myra Eliza Mohd Danil, Adlyn Adam Teoh, Choong Wai Li, Ng Mei Mei, and two others who wish to remain anonymous.
Under the suit, the mothers are seeking a declaration that children born outside Malaysia and whose mothers are Malaysians to be granted Malaysian citizenship, and want the court to order all government agencies to issue citizenship documents, identity cards and passports to these children.
Malaysian law allows only fathers to obtain citizenship for their children born outside Malaysia, but not mothers.
The decision to dismiss the government's appeal today was unanimous, said appellate court judge Justice Datuk Azizah Nawawi. Besides Azizah, the other judges who sat on the case this afternoon were Justices Datuk Abu Bakar Jais and Datuk Seri Mariana Yahya.
"The issue here is whether the amended OS is obviously unsustainable. We find that it cannot be said that the amended OS is obviously unsustainable as it wasn't bound to the interpretation of Article 14 and Article 8 of the Federal Constitution.
"Therefore, the appeal is dismissed with no order as to costs," Azizah said.
Article 8 concerns the right to equality and Article 14 is on citizenship by operation of the law.
On May 6, Justice Akhtar dismissed the striking out application by the government on the grounds that it was not frivolous as the court found there was clear discrimination against Malaysian mothers.
"There is an apparent discrimination against the mother and father of the child, but there doesn't seem to be any justification for such discrimination," Justice Akhtar said in his ruling then.
Professor Datuk Dr Gurdial Singh Nijar, who represented the plaintiffs today, told the court that he should be allowed to argue this matter at the High Court on Tuesday as it involves constitutional matters and has brought problems to Malaysian mothers.
"We have problems of Malaysian mothers staying overseas and marrying foreigners, who have children but got divorced, and are facing problems with their (children's) citizenship; or mothers who are returning from overseas with their children, but are facing similar problems.
"This issue should be resolved as these children were not born out of wedlock," he said.
Senior federal counsel Ahmad Hanir Hambaly, however, argued that the OS was frivolous, vexatious and an abuse of the court process, and that there was no cause of action stipulated.
The suit sought to change the provisions of the constitution, to have the word "father" to also be deemed as the mother in the application, which is unconstitutional, he argued.
With the dismissal of the federal government's appeal today, the case will proceed next Tuesday, as Justice Akhtar also, during case management yesterday, refused its application for a stay of Tuesday's proceedings.