PUTRAJAYA (March 23): The Court of Appeal on Wednesday fixed June 22 to deliver its verdict over the Home Ministry, National Registration Department (NRD) and the Government's appeal over a landmark High Court decision last year that allowed citizenship to be granted to children born overseas to Malaysian mothers with foreign spouses.
The three-member bench led by Justice Datuk Wira Kamaludin Md Said delayed delivering its decision on Wednesday afternoon, after hearing submissions to appeals by the Government in relation to the citizenship case, while also hearing the appeal of a Malaysian mother seeking citizenship for her underage child.
The other two members were Justices Datuk Azizah Nawawi and Datuk ES Nantha Balan.
Senior federal counsel Liew Horng Bin representing the NRD, Ministry and government said the High Court judge had erred in deciding that Article 8 of the Federal Constitution, which outlawed gender discrimination, also applied to citizenship sought by Malaysian mothers whose children are born overseas.
Prior to the landmark High Court decision last year, overseas children born to Malaysian fathers were allowed to apply for Malaysian citizenship, but this did not apply to Malaysian mothers.
Liew explained that the framers of the Constitution were clear in putting father only in the Federal Constitution, and the amendment made to Article 8 in 2001 regarding equality that bars gender discrimination cannot be applied to citizenship issues.
The senior federal counsel referred to a Parliament Hansard quoting the then de-facto Law Minister, Tan Sri Rais Yatim, about this.
He further said that there are four issues requiring additional approval from the Conference of Rulers besides the go-ahead from Parliament — and these concern the exclusive rights of the Malays, the sovereignty of the Malay Rulers, citizenship issue and also the national language, namely Bahasa Melayu.
“This follows the May 13, 1969 racial riots and is considered part of the social contract that besides requiring Parliament approval, the go-ahead from the Conference of Rulers is required,” he said.
As such, Liew told the appellate bench that High Court judge Justice Datuk Akhtar Tahir, who made the decision had, had in effect re-written the Constitution and actually changed the government's policy. Liew argued that the court cannot do this.
“The word 'father' in the Constitution is not meant to include 'mother'. It was not considered discriminatory when the Constitution was drafted in 1959,” he said, adding this is entrenched and there was no need to comply.
Term 'fathers' should include 'mothers'
Last Sept 9, High Court Justice Akhtar in his decision said the courts are empowered to interpret the law to uphold the spirit of the Federal Constitution and ensure justice.
He said 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.
“The word ‘father’ must therefore be read to include mothers and that their children are entitled to citizenship by operation of law,” the High Court judge said in his landmark decision.
While the Government applied for a stay of the decision, the High Court and Court of Appeal dismissed the stay application.
Meanwhile, Professor Datuk Dr Gurdial Singh Nijar, who appeared for the six mothers and a non-governmental organisation called Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) said the 2001 amendment that bars gender discrimination should be read in its entirety and in harmony with the Constitution.
“It is not the intent of the amendment to prohibit discrimination on gender,” the senior counsel said, adding that he appeared for Malaysian mothers whose children are here, and some of them do not have the same rights as their peers to get proper education opportunities.
He added that it defeats the purpose of having the 2001 amendment when such gender discrimination still persists with regards to citizenship issues.
Cyrus expresses concern over SFC's submission
Meanwhile, another senior counsel, Datuk Dr Cyrus Das, who appeared for a Malaysian mother in the appeal, said the Government and senior federal counsel's argument is quite alarming, especially his submission on the exclusion with regards to citizenship issues.
He said Article 14 on citizenship does not exclude the explanation in Article 8 regarding the discrimination on gender regarding citizenship.
This also goes against the interpretation doctrine of the Constitution.
“After 2001, the amendment to article 8(1) the word father as referred to in the Constitution, should be read interchangeably to refer to mothers. That is the construction of the Constitution,” the constitutional lawyer said.
Das also said besides Parliament, judges may also make laws, as they are involved in the interpretive process, and the High Court decision along with a Federal Court judgment on the stateless children issue is right.
The senior lawyer then added that as Liew had submitted outside the scope of the case, his team is also requesting to make additional written submissions, which Justice Kamaludin allowed, saying they must be handed in by April 13.
In a related development, Family Frontiers in a statement said the Government has a golden opportunity to undo years of discrimination against Malaysian women by withdrawing the appeal against the High Court decision and implementing what was decided without further delay.
“As long as the Government defends the status quo, the concept of #KeluargaMalaysia will ring hollow. Thousands of Malaysian women endure a lifetime of uncertainty and increased vulnerability to violence and abuse.
“They also live in constant fear and anxiety of being separated from their children. Meanwhile, children of Malaysian women continue to be denied equal access to affordable healthcare, education, and the right to remain in the country with their family,” the statement said.