Suriani Kempe v Kerajaan Malaysia (2021)

All Constitutions are born at a particular time in history and necessarily reflect the existentialist realities of their time and place. At the same time, a good Constitution must hitch itself to the stars; it must be aspirational and must contain seeds of change for a better tomorrow.

Equality: Like all Constitutions, some provisions of our 64-year old Constitution reflect our patriarchal past. At the same time, our basic law also incorporates some egalitarian features. In Article 8(1), it summons us to “equality before the law and equal protection of the law”. In the Eleventh Schedule, an interpretation clause says that, “words importing the masculine gender include females”. This means that rights and duties applicable to males apply equally to females.

In 2001, an admirable amendment to Article 8(2) banned gender discrimination “in any law”. As CJ Tun Tengku Maimun pointed out in CTEB v Ketua Pengarah Pendaftaran Negara [2021] 6 CLJ 471, the Constitution is within the definition of “any law”.

Patriarchy: Regrettably, however, there remain many areas where the law panders to patriarchal traditions. For example, in citizenship provisions, Articles 14, 15, 24, 26, 28 and Parts I and II of the Second Schedule bristle with gender bias. Some provisions for citizenship of children emphasise descent from the citizen father and regard the mother’s citizenship as irrelevant. But ironically, when it comes to an illegitimate child of a foreign mother and a Malaysian father, the child’s nationality becomes dependent on the foreign mother’s citizenship and the father’s nationality becomes irrelevant even if he acknowledges his paternity: CTEB v Ketua Pengarah Pendaftaran Negara [2021] 6 CLJ 471.

In laws relating to permanent residence for a spouse, there is discrimination against Malaysian females who dare to marry a foreign male. But a Malaysian male marrying a foreign female can have her become a citizen by registration after two years of residence. A foreign husband, however, has to wait 12 years to be eligible to apply!

In Article 161(6), the status of a “native” of Sabah is dependent on descent from the father. Under Article 8(5), “personal laws” are exempt from the equality requirement of Article 8(2).

Role of a judge: In those areas were the law remains archaic, what should our learned judges do? Should they wring their hands in despair, interpret the discriminatory provisions literally, mechanically and in isolation and wait for the executive-dominated Parliament to rectify the injustices? Or should they read the Constitution as a whole, adopt harmonious construction, and import, as far as possible, the civilising influence of Article 8(2) into every law? This was the real issue in the Suriani Kempe case.

Facts: A group of Malaysian mothers who are married to foreigners and who gave birth to legitimate children outside the Federation sought a declaration that their children are citizens by operation of law under Article 14(1)(b) read with the Second Schedule and Section 1(c) of Part II in much the same manner as children who are born outside the Federation to Malaysian fathers are entitled to citizenship. The Plaintiffs submitted that this impugned provision should be read harmoniously with Article 8(2) which prohibits gender discrimination in any law.

Article 8(2) not applicable: In reply to the Plaintiff, the Defendant argued that Article 8(2) is not applicable because it begins with the words “Except as expressly authorised by this Constitution there shall be no discrimination against citizens on the ground only of… gender in any law…” The court in rejecting this argument held that for Article 8(2) to be inapplicable, there must be an explicit exception by means of a phrase like “Notwithstanding Article 8”.

Interpretation in isolation: The Defendant also argued that each provision of the Constitution is of equal standing and not subordinate to the other. As such, the Second Schedule and Section 1(c) of Part II need not give way to Article 8(2). The judge wisely concluded that the Federal Constitution should be read harmoniously and not disjointedly.

Ouster clause: Another submission of the Defendant was that the power of the courts to review citizenship decisions is ousted by Section 2 of Part 3 of the Second Schedule. This ouster clause argument was dealt with by the judge by holding that citizenship applications under Article 15 are subject to the ouster clause but not citizenship by operation of law under Article 14 which is a right and not subject to ministerial discretion.

The law on ouster clauses was not dealt with in the judgment in any detail but the Defendant’s submissions do not carry much weight because in several cases courts have held that judicial review is not totally barred in citizenship cases: Soon Kok Leong [1968] 2 MLJ 88; Mak Sik Kwong (No 2) [1975] 2 MLJ 175; Lew Yee Hong v Ketua Setiausaha [2020] 1 CLJ 419. Administrative law in Malaysia has developed to the point that no ouster clause can protect a decision that is ultra vires and a nullity.

Separation of powers: The Defendant invoked the doctrine of separation of powers that on policy issues judges should not interfere with the executive. In a bold statement the learned judge rejected this platitude. He held that the doctrine of strict separation of powers does not apply in Malaysia because the executive and the legislature are conjoined. The main manifestation of the doctrine in Malaysia is that the judiciary is independent and not affiliated with either the legislature or the executive. Very correctly he observed that to oust the jurisdiction of the courts would destroy the doctrine of separation of powers and not support it.

Locus standi: A further argument of the defendant was that the Plaintiff had no locus standi because only the children were affected and not the Plaintiffs! The court had no difficulty in rejecting this most insensible and insensitive argument. The Plaintiff had convincingly argued that unlike Malaysian fathers, they have to apply for citizenship for their children by virtue of Article 15(2) which is not only a lengthy process but is entirely discretionary in the hands of the Minister. The rejection of citizenship of foreign-born children has resulted in situations that in the same family some kids are citizens and some non-citizens.

Privilege, not a right: The Plaintiff also argued that citizenship is a privilege and not a right. The court replied that citizenship is indeed a privilege, but it must be offered without discrimination and the issue of discrimination was central to the case.

Constitutional interpretation: In addition to the constitutional and legal issues raised and dealt with by the court, this case is rich with theories of constitutional interpretation that would gladden the heart of many students of our basic law.

The learned judge held that the Constitution lays down an enduring scheme of government in accordance with certain moral values. It must therefore be interpreted differently than other documents. It must be interpreted in the light of its spirit. The judge sought inspiration from the constructive, “Dworkinian interpretation” of the law in the memorable Federal Court decision in Alma Nudo Atenza [2019] 5 CLJ 780 and Indira Gandhi Mutho [2018] 1 MLJ 545.

In a controversial and courageous statement that echoes the jurisprudence of some great jurists, Justice Akhtar expressed the view that the Constitution must not be interpreted in a vacuum without regard to the thinking in other countries sharing similar values.

The Constitution is an organic document and its interpretation must not be mechanical. The organic unity of interpretation requires us to see the present social conditions and interpret the Constitution in a manner so as to resolve the present difficulties.

The Constitution must be interpreted harmoniously and purposively so as to not render any provision nugatory. All provisions should be interpreted in accordance with each other and must be reflective of each other. In the case at hand, the impugned provision of the Schedule must partake of the provision of equality in Article 8 of the Constitution.

The learned judge paid a special tribute the chapter on fundamental rights and held that fundamental rights have been given a higher pedestal than all other provisions of the Federal Constitution and therefore any breach of fundamental liberties should be viewed restrictively.

The learned High Court judge referred to the unusual legal situation raised in the apex court decision in CTEB v Ketua Pengarah (2021). That case held that an illegitimate child follows the citizenship of its mother. If she is a citizen, her illegitimate child gets her citizenship status by descent. In the case at hand, a legitimate child, born abroad to a Malaysian mother fails to obtain its mother’s citizenship!

All in all, Justice Dato Haji Akhtar bin Tahir must be commended for his activist, constructive, holistic and harmonious construction of the Federal constitution. His judgment lends credence to the view that the judiciary is not merely a legal institution but also a moral institution with a responsibility to add moral colours to the legal canvas whenever that is possible. His judgment appears partly inspired by the learned dissenting views of CJ Tengku Maimon and FCJ Nallini Pathmanathan in CTEB v Ketua Pengarah.

Appeal: Regrettably, the AGC has filed an appeal. Hopefully, the appeal courts will take note of three additional factors.

First, Section 2(94) of the Eleventh Schedule provides a rule of interpretation that “words importing the masculine gender include females”.

Second, in a clash between a provision of fundamental liberties and the “supplementary provisions” of the Second Schedule, the courts should pay heed to the dissenting view of Chief Justice Tengku Maimun in the CTEB case.

Finally, it is submitted that the constitutional provisions on citizenship drafted 64 years ago cannot remain static. Their interpretation must be guided by the fresh flows generated by the constitutional amendment of Article 8(2). The 2001 provision on gender equality is not a window-dressing but a mighty tributary whose waters are meant to enrich all other streams of the law.

[MONTHLY CASE COMMENTARY] The monthly case commentary is extracted from the Consti Bulletin, which is a collaboration between the Faculty of Law, University of Malaya and the Malaysian Bar Council.

In this commentary, the esteemed constitutional expert, Emeritus Prof Datuk Dr Shad Saleem Faruqi will dissect the case of Suriani Kempe v Kerajaan Malaysia (2021)