KUALA LUMPUR: The High Court here today fixed Nov 15 to hear the government's application for a stay of the court's ruling that children born overseas to Malaysian women married to foreigners are entitled to be citizens of Malaysia.
Counsel Joshua Andran, who confirmed the matter when contacted by Bernama, said the date was fixed during a case management before deputy registrar Maslinda Selamat.
The government filed the application for a stay pending disposal of its appeal to the Court of Appeal.
On Sept 9, Judge Datuk Akhtar Tahir ruled that children born overseas to Malaysian mothers who are married to foreigners are entitled by operation of law to be citizens of Malaysia.
Following that, the government has appealed against the court's decision.
In an Originating Summons (OS) filed on Dec 18 last year, they are seeking 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 are also seeking a court order for all relevant government agencies, including the National Registration Department (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, the Home Minister and the director-general of the NRD as defendants.
In a 24-page written judgement made available to the media today, the judge ruled that there is no abuse for the plaintiffs in bringing this action against the defendants and the plaintiffs have the locus to file the OS.
"In a further submission, the defendants have raised various issues of the plaintiffs' locus in bringing this action. The first is that citizenship is a privilege rather than a right and therefore the plaintiffs are stopped from making a claim to the citizenship for their children.
"The short reply of the court to this argument is that, even if the granting of citizenship is a privilege it must be offered without discrimination. It does not address the discrimination issue," the judge said.
Justice Akhtar said the second issue raised on locus by the defendants was that the persons aggrieved are the children who have not been given citizenship and not the mothers therefore the mothers can only bring a representative action on behalf of the children.
"It is noted by the court that the mothers have highlighted in their affidavits the grievances they are facing for the children not being granted citizenship.
"This includes enrolment into school, additional expenses in education, health care and many other problems. The defendants in their affidavit have not challenged any of this grievances faced by the mothers. So it is illogical to argue that only the children are aggrieved not the mothers. By not disputing the grievances faced by the plaintiffs, the defendants have accepted the grievances faced by the mothers as real and not mere conjecture," he said.
The judge said the third issue raised by the defendants is that the plaintiffs are abusing the process of law by coming to the courts only after their application for citizenship have been rejected under Article 15 of the Federal Constitution.
"This argument can be brushed aside simply on the strength of the defendants' own argument that the plaintiffs have to resort to court after being denied citizenship for their children.
"Whether the plaintiffs can succeed in their action is not a criterion to determine whether they have a locus or not. In this case it was the court's ruling that there are valid issues to be determined and the plaintiffs have an interest in the determination of these issues. Therefore, all the plaintiffs have a locus to file this OS," he stressed.
In summing up on the issue, judge Akhtar said that the court reiterated that it was not seeking to change the federal government's policy of granting citizenship.
"The government's policy on citizenship of children born out of Federation had already been decided during the time of the second Prime Minister of Malaysia. The defendants have painstakingly adduced extracts of the Hansard which shows that the government had decided to adopt the principle of 'jus sangunis' to confer citizenship to the children born out of the Federation on and above to children born in the Federation. To this end Article 14 (1) (b) of the Federal Constitution, the impugned provision was enacted.
"This court further reiterates that it was not seeking to change the policy or rewrite the law which has already been enacted by the federal government. What the court was endeavouring to do was applying the existing law and policy already in force in a manner which will find a remedy to the grievance of the plaintiffs. The courts are surely empowered to do this.
"The grievances of the plaintiffs are real and the defendants must not bury their head in the sand like an ostrich and state that there is no grievance or discrimination. The court has already stated that the discrimination against the mothers was apparent," said the judge.
Judge Akhtar also concluded that Article 8(2) on equality that prohibits discrimination based on gender would also mean that the word "father" in the Federal Constitution under the Second Schedule, Part II, Section 1(b) should also include mothers and that their children are entitled to citizenship by operation of the law.
"Having regards to the anomaly that has arisen in interpreting the impugned provision literally or mechanically the court concludes that the father in the impugned provision must include the mother of the children born out of Federation," he stressed.
-- BERNAMA
Bernama
Tue Sep 28 2021
The High Court here today fixed Nov 15 to hear the government's application for a stay of the court's ruling that children born overseas to Malaysian women married to foreigners are entitled to be citizens of Malaysia. AWANI / SHAHIR OMAR
Who is Prabowo Subianto, incoming president of Indonesia?
A wealthy ex-general with ties to Indonesia's popular outgoing president and its dictatorial past, looks set to be its next leader.
Iran's supreme leader says Hamas leader's death will not halt 'Axis of Resistance'
The "Axis of Resistance", built up with years of Iranian support, includes Hamas, the Lebanese Hezbollah group, the Houthi movement in Yemen, and various Shi'ite groups in Iraq and Syria.
Putin says Russia willing to seek compromises between Iran and Israel
Russia is ready to help seek compromises between arch-foes Israel and Iran, President Vladimir Putin said on Friday, saying these would be difficult but possible.
What proposals will Russia push at the BRICS summit?
The proposal is also to establish a BRICS reinsurance company to allow uninterrupted shipment of goods and key commodities between members.
Indonesia's free meals plan in the spotlight as Prabowo readies for office
Prabowo calls the programme one of the main drivers of economic growth, eventually set to add an estimated 2.5 million jobs.
Astro AWANI's revamped English news website, AWANI International, launches on Oct 21
Astro AWANI's revamped English platform delivers in-depth global news and expert analysis to keep you informed on key developments.
Israeli strikes kill 33 people in Jabalia refugee camp in Gaza, medics say
Residents of Jabalia said Israeli tanks had reached the heart of the camp after pushing through suburbs and residential districts.
Liam Payne's ex-partner calls for media restraint after 'painful' death
Cheryl Tweedy used her statement to urge the media to remember they had a seven-year-old son, Bear, who could read the reports.
Analysts: Indonesia's strong MoF leadership team to boost investor confidence
Sri Mulyani Indrawati as head of Indonesia's Ministry of Finance is expected to instil confidence among investors.
Biden offers both a carrot and a stick to Israel as his term nears an end
Israel has frequently resisted US advice and has caused political difficulties for the Biden administration.
Putin says BRICS will generate most of global economic growth
Russian President Vladimir Putin will host a summit of the group in the city of Kazan on Oct. 22-24.
ISIS Malaysia's perspective of Budget 2025
An excellent rakyat-centric budget under the overarching principle of a caring and humane economy.
Budget 2025: Record increase in STR, SARA aid initiatives
The government will provide a significant boost to the Sumbangan Tunai Rahmah (STR) and Sumbangan Asas Rahmah (SARA) initiatives next year.
Budget 2025: EPF contributions to be made mandatory for foreign workers – PM Anwar
The government plans to make it compulsory for all non-citizen workers to contribute to the Employees Provident Fund (EPF).
What policies to expect from Indonesia's new President Prabowo
Prabowo will be open to foreign investment, his aide has said, such as by offering investors management of airports and sea ports.
Budget 2025: Govt allocates RM470 mil to empower women's participation in PMKS
The Women's Leadership Apprenticeship Program will be intensified as an effort to produce more female corporate personalities.
Israel sends more troops into north Gaza, deepens raid
Residents of Jabalia in northern Gaza said Israeli tanks had reached the heart of the camp, using heavy air and ground fire.
Indonesia ramps up security ahead of Prabowo's inauguration
Prabowo Subianto will be sworn in as Indonesia's president on Sunday with Vice President-elect, Gibran Rakabuming Raka, also taking office.
Immediate allocation of RM150 mil for local authorities, DID to tackle flash floods
Datuk Seri Anwar Ibrahim said this allocation is intended to address the recent flash floods that hit the capital and several major towns.
Budget 2025: Sabah, Sarawak to continue receiving among highest allocations - PM
Sabah and Sarawak continues to be prioritised under Budget 2025, with allocations of RM6.7 billion and RM5.9 billion respectively.