Verdict on govt’s appeal in equal citizenship case postponed to Aug 5

The decision in the government’s appeal against a High Court’s ruling that children born overseas to Malaysian women married to foreigners are entitled to automatic Malaysian citizenship was today rescheduled for Aug 5.

A three-man Court of Appeal panel comprising justices Kamaludin Md Said, Azizah Nawawi and S Nantha Balan will deliver their decision in open court.

Kamaludin suggested that the decision be delivered in open court instead of online as the lawyers who are on a watching brief and the media might wish to be present.

The judges were supposed to deliver their decision today in two appeals but these were reverted for further submissions following an additional point raised by senior federal counsel Liew Horng Bin, representing the government.

The first appeal involves the Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) and six Malaysian women who are married to foreigners while the other involves a woman born overseas to a Malaysian mother.

In today’s proceeding conducted online, Liew brought to the court’s attention a recent decision of the Federal Court which he said had a direct effect on the citizenship cases.

“Following the decision in the case of Dhinesh a/l Tanaphil vs Lembaga Pencegahan Jenayah (Crime Prevention Board & others, delivered last April, it appears that Article 8 (2) of the Federal Constitution cannot be amended as it forms part of the basic structure of the Federal Constitution.

“The amendment in 2001 to Article 8 (2) of the Federal Constitution to prohibit gender discrimination is impermissible,” he added.

He also argued that the amendment to Article 8 (2) which states that there shall be no discrimination against citizens regarding religion, race, descent, place of birth, or gender in any law, does not apply to Article 14 (2) of the Federal Constitution, the citizenship provision.

“The word ‘father’ in Sections 1 (b) and 1 (c) of the Second Schedule, Part II of the Federal Constitution, should not be interpreted to connote ‘mother’ as the provision cannot be amended,” said Liew.

High Court judge Akhtar Tahir, in his decision to allow children born overseas to Malaysian women married to foreigners to be entitled to citizenship by operation of the law under Article 14 (2), had held that the word “father” in Section 1 (b) must be read to include the mother.

At today’s proceeding, lawyer Gurdial Singh Nijar, representing the mothers and Family Frontier, argued that the Dhinesh case judgment should be read as a whole instead of portions of a passage being lifted.

He said the judgment, when read as a whole, supported improvements to the Federal Constitution such as Article 8 (2).

“It is the duty of the court to interpret the Federal Constitution in a harmonious way as the appeal concerns children and family,” he said.

Meanwhile, lawyer Cyrus Das, appearing for Mahisha Sulaiha Abdul Majeed, said Liew’s argument was astonishing and should not be entertained by the court.

In the first case, the government, home ministry and National Registration Department (JPN) director-general are appealing against the High Court decision on Sept 9 last year, recognising that children born overseas to Malaysian mothers have the automatic right to be Malaysians.

In the second case, Mahisha Sulaiha, who was born to a Malaysian mother and an Indian national father in India, is appealing against the Aug 19, 2020 High Court dismissal of her suit which she filed seeking a declaration that she is entitled to be a Malaysian citizen.

In their suit, among others, the mothers sought a court order for all relevant government agencies, including the JPN, immigration department and Malaysian embassies, to issue documents relating to citizenship including passports and identity cards to children born abroad to Malaysian women with foreign spouses.