ON August 5, 2022, the Court of Appeal with a 2-1 majority decision overturned the high court's earlier ruling, now ruling that Malaysian mothers married to foreign men will not be allowed to transfer citizenship to their children born overseas, by operation of law.
Yet again, another round of “he says, she says”.
Justice Kamaludin Md Said said that it was for the Parliament, instead of the court, to rewrite the constitution, as a parliamentary process is a better way of resolving issues involving controversial and complex questions arising out of a moral and social dilemma.
Then on August 21, Attorney-General (AG) Tan Sri Idrus Harun reiterated that the issue can be resolved by the government by amending the federal constitution.
He stated, “It has to be done by the government, not me”. From the Attorney-General’s Chambers (AGC) and judiciary perspectives, the ball is in the executive’s court. Ironically, just as the AG was making that statement, the law minister on the same afternoon said that Putrajaya must wait until the Federal Court decides on an appeal filed by affected mothers.
It is as though, that by operation of law, the Court of Appeal judgement has reaffirmed that gender discrimination prevails in our federal constitution, thus suggesting women do not share equal privileges to men in this country when it comes to conferring citizenship to their children.
This unacceptable gender discrimination has a direct impact on the sustainable development of our nation. With affected children exposed to unequal access to education, healthcare, economic opportunities, social protection, the right to participate in the democratic society, and hindered inheritance, we have effectively outcasted a significant proportion of potential human assets by our inactions.
Not only children, but we have lost our women too.
1.86 million Malaysian women are living overseas, citing reasons for citizenship issues as one of the main factors deterring their return to Malaysia. This figure represents 12% of the total female population of 15.6 million in Malaysia. This makes Malaysia the country with the second highest regional rate of women migrating with 57%, second only to Thailand, and above the global average of 48%.
It is unbelievable that such a draconian law still exists after 65 years of Independence. We are one of 25 countries left to come up with a sustainable solution. Legal amendments were made in at least 19 countries in the past decade, all towards the common goal, which is equality for all, thus we have many case examples for law reforms to learn from.
The issue of citizenship is not a mere issue of gender inequality. Sexist nationality laws lead to other human rights violations. Women and children have been reportedly trapped in abusive marriages when their or their children’s citizenship is dependent on their spouse.
Such laws also make it difficult for a mother to claim child custody or gain access to her children if her marriage ends in separation or divorce. Underaged girls are at greater risk of forced marriages as families may view this as a way to gain legal status. Such laws separate families and impose restrictions on freedom of movement, which has been repeatedly reported, especially during the Covid-19 pandemic travel restrictions.
To have a full picture of the issue on hand, let’s trace back the origin of that particular legal norm. Historically, many countries adopted the patriarchal position that a woman’s legal status is acquired through her relationship with a man 一 first her father and then her husband.
Such rationale for the principle of dependent nationality stems from two assumptions: first, that all members of a family should have the same nationality and, secondly, that important decisions affecting the family would be made by the husband.
These assumptions were linked to the idea of citizenship, which relates to a person’s public identity: the relationship between an individual and the state. In many states, the assumption that a married woman’s primary location is in the private sphere, within the home, and under the protection of her husband, has prevailed.
Thus, her need for a separate public identity and legal relationship with a state was not taken into account.
The Malaysian women's rights movement has had many successes - from the Beijing Platform for Action pledge “to revoke any remaining laws that discriminate on the basis of sex” and the ratification of Cedaw in 1995, to the insertion of “gender” under Article 8 of the Constitution on equality in 2001; and most recently, the Anti-Sexual Harassment Act and Anti-Stalking Bill.
Women have equal standing with men in politics, work, family, personal freedom, and opportunities. Yet, women cannot confer citizenship rights to their children, thus leading to long-term harmful consequences and hardship for thousands of families.
The current uphill battle for equality of citizenship is another fight we must endure as another step towards a universal standard of morality and humanity.
Children are innocent, and Malaysia is denying their right to survival and protection against discrimination, even though we have been a signatory of the Convention on the Rights of the Child (CRC) for almost three decades. As we celebrate our seat in the United Nation Human rights Council a few months ago, let us honour our pledges, to give “utmost priority to women’s empowerment and gender equality, to remain fully committed to upholding its treaty obligations to the Convention on the Elimination of All Forms of Discrimination against Women”.
In 2018, the Committee on the Elimination of Discrimination against Women made recommendations to Malaysia that all provision of the federal constitution that denies women equal rights in respect to the transmission of their nationality should be amended immediately. However, in our response to the UN report 3 years later, we failed to address the recommendation.
Keluarga Malaysia starts with Keluarga Kita (our family). While the ball is skittishly being tossed between the executive, judiciary and legislative, children turn 18 and lose the right to be recognised as Anak Malaysia. The fact is all three branches are capable of doing what is right for these children. The judiciary had exercised judicial activism in the high court decision, as well as in the dissenting judgement of Justice Nantha Balan.
Laws cannot be static nor cast in stone. The setup of all three branches of government is precisely designed to counter such issues – to interpret and review any law that no longer serves its purpose and is harmful to the people.
The fact is our law-making process must come from the government as owners of any constitutional amendment.
As the chair of the Parliamentary Special Select Committee on Women and Children Affairs & Social Development, our committee is readily able and willing to file a Private Members Bill for a much-needed constitutional amendment. However, without an independent, impartial, and well-supported Parliament, I am doubtful of the opportunity for a private member bill to be tabled in Parliament to see the light of day.
Members of Parliament, we reached a historical unanimous vote for a constitutional amendment to support the passing of the anti-party hopping law. If and when a bill is presented to us to make a minor amendment to the constitution to allow for both fathers AND mothers to confer citizenship to their children, I trust that we can unanimously agree to do the same.
Just as party hopping is unjust and unethical, so is leaving thousands of children stateless and in limbo. Imposing and prolonging unnecessary suffering to families and children taints the spirit of Keluarga Malaysia.
As we celebrate 65 years of Independence on August 31, it is my fervent wish that the thousands of families and children in citizenship limbo “dimerdekakan” (achieves freedom). – The Vibes, August 29, 2022
Datuk Seri Azalina Othman Said is the MP for Pengerang
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