PUTRAJAYA – The decision for the government’s appeal against a high court ruling granting automatic Malaysian citizenship to children born overseas with Malaysian mothers married to foreigners has been refixed to August 5.
The Court of Appeal’s three-member panel comprising justices Datuk Seri Kamaludin Md Said, Datuk Azizah Nawawi and Datuk S. Nantha Balan will deliver their decision in open court.
Justice Kamaludin suggested for the decision to be delivered in open court instead of online as lawyers who are on a watching brief and media may want to be present.
The judges were supposed to deliver their decision today in two appeals but these were reverted for further submissions following the additional point raised by senior federal counsel Liew Horng Bin, representing the government.
The two appeals involve Family Frontier and six Malaysian women who are married to foreigners, as well as another case involving a woman born overseas to a Malaysian mother.
In today’s proceeding – which was conducted online – Liew brought to the court’s attention a recent decision of the Federal Court which he said had direct impact on the citizenship cases.
“Following the decision in the case of Dhinesh Tanaphil vs Lembaga Pencegahan Jenayah (Crime Prevention Board) that was 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.
He said using the amendment in 2001 to Article 8 (2) of the federal constitution to prohibit gender discrimination is impermissible.
He also argued that the amendment to Article 8 (2) which states that there shall be no discrimination against citizens on religion, race, descent, place of birth, or gender in any law, does not apply to Article 14 (2) of the federal constitution, under the citizenship provision.
“The word ‘father’ in Section 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 Datuk Akhtar Tahir, in his decision to allow children born overseas to Malaysian mothers married to foreigners to be entitled to citizenship by the operation of 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 Datuk Gurdial Singh Nijar, representing the mothers and Family Frontier, argued that Dhinesh’s case judgment should be read as a whole and not lift portions of a passage.
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.
Lawyer Datuk Cyrus Das, appearing for Mahisha Sulaiha Abdul Majeed, said Liew’s argument was astonishing and should not be entertained by the court.
For the first case, the government, Home Ministry and National Registration Department (NRD) director-general are appealing against the high court’s decision on September 9, last year recognising overseas-born children to Malaysian mothers have the automatic right to be Malaysians.
As for the second case, Mahisha Sulaiha, who was born to a Malaysian mother and Indian national father in India, is appealing against the August 19, 2020 dismissal of her suit which she filed seeking a declaration that she is entitled to be a Malaysian citizen.
In their suit, among other things, the mothers want a court order for all relevant government agencies, including the NRD, Immigration Department and Malaysian embassies, to issue documents relating to citizenship (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses. – Bernama, June 22, 2022
