Court Overturns Ruling Granting Citizenship to Children Born Outside Malaysia

Tengku Noor Shamsiah Tengku Abdullah/Kuala Lumpur

Malaysian mothers wait at the Court of Appeal in Putrajaya for a verdict in their lawsuit seeking the right to citizenship for their children, who were born overseas to foreign fathers, Aug. 5, 2022 Photo Courtesy:S. Mahfuz/BenarNews

An appeal court on Friday overturned a ruling seen as a victory for women that for the first time would have allowed Malaysian mothers married to foreign men to pass citizenship to their children born overseas.

In a 2-1 decision in favor of the government, Court of Appeal judges said it was up to Parliament, and not the courts, to resolve the issue because only the legislature could rewrite clauses in Malaysia’s constitution.

In September 2021, the kuala Lumpur High Court ruled that Malaysian women living in such marital circumstances abroad were being discriminated against because, it said, the same rule about foreign births did not apply to Malaysian men. At the time, women’s rights advocates hailed the ruling as a landmark victory for gender equality in the Southeast Asian nation.

The case centers around a clause in the constitution stating that “every person born outside the Federation … whose father is a citizen at the time of the birth” is a citizen “by operation of law.”

In his ruling last year, High Court Judge Akhtar Tahir said the word “father” could be interpreted and understood to mean mothers as well.

The appeal court disagreed with his interpretation and said only the legislature could debate and settle the matter because Parliament has the power to change constitutional clauses.

“The word ‘father’ reflects ‘father’ only, and does not reflect ‘mother,’” local media reports quoted Appellate Judge Kamaludin Md Said as saying in Friday’s ruling.

The framers of the Federal Constitution would have used the word “parent” if it was intended to refer to either a father or mother, Kamaludin said. The framers’ deliberate choice of the word “father” in the clause, he argued, specifically refers to a “male parent.”

Meanwhile the dissenting judge on the three-member panel, Justice Nantha Balan, argued that the law was indeed “discriminatory” in nature, local media quoted him as saying.

“In my view, there is patently a conflict, as the wording of the letter gives rise to interpretation that the bloodline of Malaysian mothers would be treated as inferior to that of fathers, as the jus sanguinis principle [citizenship by parentage] does not apply for Malaysian mothers to pass on citizenship,” Nantha said, according to reports.

The ordeal that mothers have had to go through under such circumstances was illogical, perverse and degrading to their rights and dignity, Nantha said.

Some Malaysian women who fall into the category of those who are married foreigners and who gave birth abroad were with their children at the courthouse in Putrajaya on Friday. Many of these mothers were visibly distraught after the verdict came down.

One mother, Adeline Adam Teoh, said she was appalled.

“I would like to ask should not every Malaysian citizen be given equal rights? Why do we take care of male but not female Malaysian citizens?” she said.

Another mother, Rachel Ng, has two children, one who was born abroad and one who was born in Malaysia. Under the country’s laws, because she gave birth in Malaysia to one of the children, that child automatically is a Malaysian citizen.

Ng said she feared that her family might break apart because one of her sons, the non-Malaysian, may not be allowed to stay on in the country.

“As a mother, that is my concern,” she said. “Me returning home is good enough to show that I want to be here and I want my sons to be here, too.”

Family Frontiers, a group which supports the women and sued the Ministry of Home Affairs over the matter, said it would appeal the latest decision before the Federal Court, Malaysia’s highest court.

“Today, the decision is extremely disappointing. More so as our lives and the lives of our children continue to be affected by this unjust discriminatory interpretation of the Federal Constitution,” said Suriani Kempe, the president of Family Frontiers.

“We stand firm on the belief that one day, our government will see us, the Malaysian women and Malaysian mothers, as we see ourselves as equal citizens [and] that our children have just as much right to be Malaysian as a child of Malaysian men,” Suriani told reporters as her voice quivered and her eyes filled with tears.

After the ruling on Friday, the home minister did not immediately respond to a request for comment from BenarNews.