Landmark ruling: Overseas-born children of Malaysian mums, foreign dads entitled to citizenship

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The Kuala Lumpur High Court today ruled that the government must confer citizenship to children born overseas to Malaysian mothers.

The Association of Family Support and Welfare Selangor & KL (Family Frontiers) in a statement said judge Datuk Akhtar Tahir in his judgment ruled the word ‘father’ must be read to include mothers and that their children are entitled to citizenship by operation of law.

“The judge said the courts are empowered to interpret the law to uphold the spirit of the Federal Constitution and ensure justice.

“The judge added that the case does not seek to change policy but rather to apply the existing law in a way that will find a remedy for the grievance of the plaintiffs,” the statement read.

The legal challenge against the practice of only allowing Malaysian men to automatically confer citizenship on their children born abroad was filed by six Malaysian mothers as well as Family Frontiers in December last year.

Malaysian mothers married to foreign men are required to apply for Malaysian citizenship for their overseas-born children. Besides taking years for processing, approval is not guaranteed as the government has the right to reject such applications.

Family Frontiers president Suri Kempe said they were delighted with this outcome as it was a huge relief for affected mothers.

“This judgement applies not just to the mothers directly involved in the case but to all Malaysian mothers who are similarly affected.

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“This judgement also recognises Malaysian women’s equality, and marks one step forward to a more egalitarian and just Malaysia,” she said.

One of the plaintiffs, Adlyn Adam Teoh said justice had been served as they have been waiting for years for this outcome.

Another plaintiff, Myra Eliza Mohd Danil, said she had been applying for her daughter’s citizenship since she was five months old.

“We thank God for the court’s decision today. I am so happy, and I cannot wait to tell her that she is also Malaysian, just like her brother,” she added.

The verdict was held virtually via Zoom teleconferencing earlier this morning, and a full written judgment of Akhtar’s decision is expected to be released in the coming days.

This effectively means Malaysian mothers will, by default, confer their Malaysian citizenship to their children, on an equal basis with what is currently afforded only to Malaysian men, in what could be a landmark decision.

Today’s ruling will stand and become a guiding judgement if the government decides to yield and not appeal Akhtar’s decision, but in usual circumstances, appeals will most likely be filed.

The decision will then have to face the test of the Appellate and Federal Court’s interpretation before it becomes a landmark judgement.

Lead counsel Datuk Gurdial Singh Nijar, through Family Frontiers’ statement, said the decision “fulfils the intention of Parliament when they amended Article 8 of the Federal Constitution in 2008.”

“To guarantee that there will be no discrimination against women and it also preserves the family structure, so that children born overseas to Malaysian mothers are citizens by operation of law,” Gurdial said in the statement of Parliament’s intentions.

Another lawyer on the case, Joshua Andran, said the judge’s interpretation of the Constitution was made in a manner that gave meaning to today’s ideals, saying it was an “illuminating” and welcomed ruling.

“Mothers, and women as a whole, have been owed this for nearly 20 years and today they have been honoured not just by words and gestures but in pragmatic terms.

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“In this day and age, discrimination against women, especially in such a fundamental issue such as citizenship, cannot be allowed to continue and this decision represents Malaysia’s effort to be counted amongst those who promote true equality between Malaysian men and women,” said Andran.

On December 18, 2020, Family Frontiers and six other Malaysian women filed the lawsuit via an originating summons, seeking six specific court orders including declarations that Section 1(b) and Section 1(c) are discriminatory and in violation of the Federal Constitution’s Article 8 which disallows gender discrimination in any law against Malaysian citizens.

They had also sought for a declaration that Section 1(b) and Section 1(c) be read harmoniously with Article 8(2) to include Malaysian mothers as a condition for children born abroad to be given automatic Malaysian citizenship.

Among other things, the Malaysian mothers in this lawsuit are also seeking a court order for all relevant government agencies including the National Registration Department, Immigration Department and Malaysian embassies to issue citizenship documents (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.

The six Malaysian mothers are Myra, Adlyn, Choong Wai Li, Ng Mei Mei as well as two others whose names are withheld for privacy purposes.