Citizenship — The Future of Children Born Overseas
Author: Brenda Rachel Lee Yiao Mei
Citizenship in Malaysia is one of the important aspects in life that holds the key to ensuring access to basic fundamental rights. Citizenship refers to a form of status that is granted to a citizen of a country, and there are certain rights and duties attached to this status to be upheld by the citizen. An individual with citizenship owes allegiance to his or her country, and in turn, he or she is entitled to protection from the government. Examples of fundamental rights that a person with citizenship has access to are namely education, healthcare and medical services at a reasonable cost, employment opportunities, travelling abroad, marriage, voting rights, owning assets, owning bank accounts as well as other fundamental liberties listed under Arts 5–13 of the Federal Constitution. A non-citizen unfortunately does not have access to these rights. Recently, the issue of citizenship has touched hot waters, particularly because the plight of mothers in being unable to confer citizenship on their children who are born overseas has been brought to light. After decades of the plight being prolonged, a landmark High Court decision on the matter has emerged.
Malaysia’s previously notorious position with regard to conferring citizenship on overseas-born children was that only a Malaysian father is able to confer citizenship on his children born overseas. This is enshrined under Art 14(1)(b) read together with Section 1(b) of Part II of the Second Schedule of the Federal Constitution. However, there is no provision expressly saying that a Malaysian mother is entitled to do the same as well. On the other hand, it must be noted that Section 1(a) of Part II of the Second Schedule allows either parent who is a Malaysian or a permanent resident of Malaysia to confer citizenship on their children if they are born within Malaysia. This highlights the clear discrimination and unnecessary hardship imposed on Malaysian mothers in conferring citizenship on their children born abroad, especially if they have married foreign husbands. Compared to the automatic granting of citizenship by Malaysian fathers in this context, mothers have to go through the tedious application process by applying to the National Registration Department (NRD) under Art 15(2) of the Federal Constitution. However, this application process is frequently met with delays, without replies or even outright rejection of citizenship from the NRD without valid reasons, which places mothers in a more conflicting and distressing situation. As a result, children born overseas to Malaysian mothers are greatly restricted from exercising their rights as normal citizens, and they cannot fully participate in the country’s economic, social and political developments. In other words, as supposedly Malaysians themselves, they are basically treated like tourists on a temporary social visit in Malaysia. Many Malaysian mothers have described these experiences as heartbreaking, distressing and an unending uphill battle as they are uncertain about how their children’s future will unfold.
Furthermore, at the international level, Malaysia has ratified the Convention on the Rights of the Child (CRC) in 1995, but the country has made reservations to several Articles of the CRC, among them being Art 7 regarding a child’s right to acquire a nationality where the child is stateless. In international law, a reservation made by a country to a particular Article of a convention refers to the country’s refusal to abide by that Article itself. This means that in making a reservation to Art 7 of the CRC, Malaysia does not agree with the idea of conferring citizenship to every stateless child due to its discriminatory position of Malaysian mothers not being able to pass their citizenship to their overseas-born children.
The landmark High Court decision of Suraini Kempe & Ors v Kerajaan Malaysia & Ors [2021] MLJU 1864 on 9 September 2021 has clarified this long-debated issue. In this case, the first plaintiff was the president of Family Frontiers, an NGO that advocates for equal citizenship and the welfare of Malaysian binational families. The second to seventh plaintiffs were Malaysian mothers married to foreign husbands whose children were born overseas. The three defendants were the Government of Malaysia, the Minister of Home Affairs and the Director-General of the NRD. Essentially, the plaintiffs filed a lawsuit against the defendants seeking three declarations, namely that Ss 1(b) and 1(c) of Part II of the Second Schedule of the Federal Constitution are discriminatory and are in breach of the principle of equality before the law under Art 8, that Ss 1(b) and 1(c) should be read and interpreted harmoniously with Art 8 to include the mother of a child born outside the Federation, and that the mother of the same has a legitimate expectation that the Government would heed its international obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the CRC, which should be read together with Ss 1(b) and 1(c).
Among the contentions of the defendants, they firstly asserted that the only persons aggrieved were the children who have not been granted citizenship, so the mothers could only bring a representative action on behalf of their children. Moreover, the defendants maintained that Ss 1(b) and 1(c) of the Second Schedule of the Federal Constitution should be interpreted in a literal manner, thus the court should give effect to the clear and unambiguous wordings of the provisions. Additionally, they argued that the sections were not discriminatory and did not violate Art 8 as each constitutional provision was of equal standing and was not subordinate to each other.
The learned High Court judge Akhtar Tahir disagreed with all the defendants’ arguments. Firstly, the learned judge recognized the apparent and visible hardship of the plaintiffs where rejection of their children’s citizenship has deprived them of privileges such as education and healthcare travel, and such rejection of citizenship has resulted in mental suffering of the plaintiffs. These hardships have been exacerbated during the pandemic due to travel restrictions. The learned judge then noted that it was illogical and absurd to say that only the children were aggrieved as the plaintiffs have highlighted in their affidavits the grievances faced by them for their children being rejected citizenship such as failure to enroll in school, additional expenses in education, healthcare and other issues. The defendants did not even challenge these grievances which were obviously apparent. Notably, in the words of the learned judge, “…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…”
Moving on, the learned judge noted that it has already been clearly decided in landmark court decisions such as Lee Kwan Woh v PP [2009] 5 MLJ 301 that when it comes to constitutional interpretation, the courts should adopt a more liberal and prismatic approach, and the Federal Constitution could not be interpreted like a regular commercial contract. The learned judge said that to apply the literal approach as argued by the defendants would be to rubber stamp the provisions without addressing their true purpose, which would result in unfairness and injustice. The learned judge further affirmed that all constitutional provisions were to be read together harmoniously and not disjointedly as contended by the defendants. As such, Ss 1(b) and 1(c) of the Second Schedule must be interpreted to reflect equality before the law under Art 8. The word “father” must be interpreted to include “mother” as well. After all, the right to citizenship was a fundamental liberty.
Lastly, the learned judge held that the discrimination towards the plaintiffs in not being able to grant citizenship to their children born overseas was apparent. In a previous High Court hearing, the defendants failed to justify the discrimination in Ss 1(b) and 1(c). Additionally, the learned judge mentioned that the plaintiffs had a legitimate expectation which was derived from their natural instinct to give the best to their children, thus it only made sense for them to expect the Government to grant their children citizenship regardless of where they were born. The High Court decided that the plaintiffs’ children were citizens by operation of law under Ss 1(b) and 1(c), and as a result, the authorities were ordered to issue citizenship documents to the plaintiffs.
The High Court decision was praised and welcomed by many especially affected mothers. Nevertheless, the Government decided to file an appeal against the decision on 13 September 2021, with the resulting public petition for the Government to withdraw its appeal which went viral. It seems that despite the landmark decision, the battle for equal citizenship may still continue as a High Court decision can still potentially be overturned by the superior courts. The only hope now for affected mothers is for the Federal Court to agree with this decision and put the matter to rest either soon or in the near future. Legislative reform through Parliament is an alternative suggestion, but with all due respect, this may not take effect anytime soon due to the political climate that the country is in.