PUTRAJAYA: The Federal Court has granted leave to a woman, six Malaysian mothers and a non-governmental organisation to proceed with their legal challenge on automatic citizenship for children born overseas to Malaysian mothers with foreign spouses.
A three-judge panel, chaired by Chief Judge of Sabah and Sarawak Justice Abang Iskandar Abang Hashim, granted the leave application after it was informed that the respondents did not object to the application.
Other judges on the bench were Justices Vernon Ong Lam Kiat and Mary Lim Thiam Suan.
In yesterday’s proceedings, the panel heard two separate leave to appeal applications – both touching on the same matter – together.
The first leave application was filed by six Malaysian mothers and an NGO, Family Frontiers, for leave to appeal against the Malaysian government, Home Minister and the National Registration Department (NRD) director-general.
The second leave application was by 25-year-old Mahisha Sulaiha Abdul Majeed, who wants to be a Malaysian citizen.
Mahisha was born in Chennai, India, in October 1997 to a Malay-sian mother and an Indian national father.
The court also ordered two questions of law proposed by appellants from the first application (the six mothers and Family Frontiers) to be subsumed into the set of questions by the appellant from the second application (Mahisha).
The revised legal questions, to be raised during the appeal hearing, are:
> Whether a person who was born outside the Federation to a Malaysian mother is a citizen of Malaysia by operation of law pursuant to Article 14(1)(b) read with Part II Section 1(b) of the Second Schedule of the Federal Constitution?
> Whether the term “father” in Part II Section 1(b) of the Second Schedule to the Federal Constitution under Article 14 on citizenship should cease to be read literally in a discriminatory way after the coming into force of the amendment to Article 8(2) of the Federal Constitution in September 2001 which prohibits gender discrimination?
> Whether Article 8(2) of the Federal Constitution should be interpreted to prohibit gender discrimination in matters concerning citizenship given that Article 8(5) was not also amended to exclude “citizenship” as a subject not falling under Article 8 at the time when Article 8(2) of the Federal Constitution was amended to generally prohibit gender discrimination?
The hearing date for the appeal is yet to be fixed.
The respondents were represented by Senior Federal Counsels Ahmad Hanir Hambaly and Liew Horng Bin.
Family Frontiers and the mothers were represented by lawyer Datuk Dr Gurdial Singh Nijar while Mahisha was represented by Datuk Cyrus Das.
On Sept 9, 2021, Kuala Lumpur High Court judge Justice Akhtar Tahir ruled that children born overseas to Malaysian mothers married to foreigners are entitled by operation of law to be citizens of Malaysia.
In his decision, Justice Akhtar held that the word “father” in Section 1(b) must be read to include the mother.
However, on Aug 5, a three-judge panel of the Court of Appeal in a 2-1 majority decision overturned the decision.
In the originating summons, filed on Dec 18, 2020, by Family Frontiers and the mothers, the plaintiffs sought for their overseas-born children to have the right to become Malaysian citizens and six specific court orders, including a declaration that Section 1(b) and Section 1(c) of the Second Schedule, Part II of the Federal Constitution 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, they also sought a court order for all relevant government agencies, including the NRD, Immigration Department and Malaysian embassies, to issue all documents relating to citizenship (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.
They named the Malaysian government, Home Minister and NRD director-general as the defendants.
Meanwhile, in Mahisha’s case, her lawsuit in which she sought court declarations that she was entitled to Malaysian citizenship was dismissed by the High Court on Aug 19, 2020.
The same Court of Appeal panel dismissed her appeal against the High Court’s decision on Aug 5.
