Appeals Court: June 22 verdict for govt's appeal on citizenship for children born abroad to M'sian mothers

Justice Datuk Seri Kamaludin Md Said, who chaired a three-member panel, fixed the date after counsels representing the respective parties in two citizenship cases completed making their submissions before the court.

"We need more time to deliberate as the cases are important and of public interest," he said.

For the first case, the government, the Home Ministry and the National Registration Department (NRD) director-general are appealing against the decision of the High Court on Sept 9 last year recognising that Malaysian mothers' overseas-born children have the automatic right to be Malaysians.

As for the second case, Mahisha Sulaiha Abdul Majeed, who was born to a Malaysian mother and Indian national father in India, is appealing against the High Court's dismissal of her suit on Aug 19, 2020, in which she sought declarations that she was entitled to Malaysian citizenship.

In the proceedings conducted online via Zoom, senior federal counsel Liew Horng Bin representing the government in the first case argued that children who were born abroad to Malaysian mothers who were married to foreigners should not be given automatic Malaysian citizenship under Article 4 (1) of the Federal Constitution.

He said the only recourse for them to get citizenship is to apply to the NRD to be registered as Malaysian citizens, as provided under Article 15 (2) of the Federal Constitution.

He said the High Court judge had rewritten the Federal Constitution in relation to granting of citizenship to the children.

He said the use of the word "father" in section 1 (b) and 1 (c) of the Second Schedule, Part II of the Federal Constitution was deliberate and does not connote "mother", adding that those provisions were not discriminatory.

The sections state that anyone born outside the country whose father is a Malaysian citizen, is considered a citizen by default by operation of law.

In High Court Judge Datuk Akhtar Tahir's decision to allow the children who were born overseas to Malaysian mothers who married a foreigner to be entitled to citizenship by operation of law, he had held that the word "father" in section 1 (b) must be read to include mothers.

He also ruled that Article 14 (1) (b) together with Section 1(b) of the Federal Constitution must be read in harmony with Article 8(2) of the Federal Constitution which prohibits gender-based discrimination.

Lawyer Datuk Dr Gurdial Singh Nijar, who appeared for Family Frontiers and the six women, argued that interpretation of the citizenship provisions cannot discriminate against a person born overseas on the mere fact that he was born to a Malaysian mother and not to a Malaysian father.

He said based on the present practice and interpretation of the laws, children born abroad where the father is a Malaysian citizen married to a foreign wife are entitled to automatic Malaysian citizenship but children who were born overseas to a Malaysian mother who married a foreign husband were not entitled to automatic citizenship.

Gurdial Singh said the interpretation of laws and adopted procedures and practices are discriminatory and in violation of his client's constitutional rights under Article 8 of the Federal Constitution.

In their suit, among other things, the mothers wanted 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.

The court also heard arguments made by lawyer Datuk Dr Cyrus Das appearing for Mahisha and senior federal counsel Ahmad Hanir Hambaly@Arwi appearing for the NRD director-general, the Home Minister and the Malaysian government.