Aug 5 verdict if mums can pass on citizenship to overseas-born children
Published on: Wednesday, June 22, 2022
By: FMT, V Anbalagan
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Some of the women involved in the suit against the government over citizenship for overseas-born children at an earlier hearing. (Photo: Family Frontiers via FMT)
PUTRAJAYA: The Court of Appeal will rule on Aug 5 if the government can deny citizenship by operation of law to children born overseas to Malaysian mothers.

This comes after a three-member bench chaired by Kamaludin Md Said heard further submissions from the appellants and respondents in response to a recent Federal Court ruling.

“We are very clear now following the forceful arguments. We still have to review whatever we had in mind before today’s submissions,” said Kamaludin after an online proceeding.

Kamaludin, who sat with Azizah Nawawi and S Nantha Balan, said the decision would be delivered in open court.

The bench had been scheduled to deliver its ruling today after hearing submissions on March 23.

However, senior federal counsel Liew Horng Bin wrote to the court to advance further submissions following the apex court ruling in April, a month after submissions on the appeal on March 23.

Liew submitted a 2001 amendment to Article 8(2) of the Federal Constitution to remove gender discrimination as unconstitutional based on legal principles established in the apex court ruling.

“Article 8(2) forms part of the basic structure of the Federal Constitution and is impermissible to amend,” he said.

“The mothers (who are the respondents) cannot rely on this provision that removed gender discrimination to confer citizenship on their children born overseas.”

He said the amendment to remove any discrimination based on gender was also not intended to affect the granting of citizenship.

“So, their argument that the word ‘father’ could also mean ‘mother’ collapses,” he said, adding that such interpretation would lead to producing a “new constitution”.

He said any amendment to the Federal Constitution should be made by Parliament and not the courts as they do not have the mandate.

Lawyer Gurdial Singh Nijar submitted that Liew was reading the apex court’s interpretation on the basic structure doctrine from a narrow perspective.

“Improvements to the Federal Constitution could be made so long as the basic structure is not violated. Article 8(2) enhances the Federal Constitution,” he said.

He said it was the duty of the court to interpret the Federal Constitution in a harmonious fashion because the appeal involved children and the family unit.

“The lives of the children are affected as far as education and health are concerned, and they are being dragged into problems that are beyond their control,” said Gurdial, who is representing an NGO and six mothers.

Lawyer Cyrus Das, who is appearing for Mahisha Sulaiha Abdul Majeed, said Liew was cherry-picking his argument.

“The submission is ‘astonishing’ and should not be entertained by this court. The government must challenge the 2001 amendment and not launch an attack,” he said.

He submitted that Article 8(2) stated that there should be no discrimination against citizens, who include Malaysian mothers.

Last year, the High Court ruled that the government must grant citizenship as the word “father” in the Second Schedule of the Federal Constitution must mean and include mothers.

In allowing several declaratory reliefs sought by the NGO and the mothers that certain provisions on citizenship in the constitution were discriminatory, judge Akhtar Tahir said they were entitled to be conferred citizenship by operation of law.

In the second case, Mahisha, who was born to her Malaysian mother and Indian-national father in India, is appealing against a 2020 High Court ruling that favoured the government over her bid to become a Malaysian.

The government, the home minister and the director-general of the national registration department are appearing as appellants and respondents.

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