Episode 21: Patriarchal Provisions: Citizenship Under the Federal Constitution

In February’s Law Series, the Consti Team delves into the topic of citizenship under the Federal Constitution. The article examines the Constitution’s patriarchal provisions regarding citizenship, which, in addition to the Court of Appeal’s recent ruling in Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194, leaves Malaysian women facing great hardship in passing down citizenship to their children born abroad. The Consti Team discusses several ways in which citizenship may be granted under the Constitution and how arguably these provisions operate to leave women at a disadvantage when compared to their male counterparts. The criticisms of various parties with regard to the current laws in place are looked at, leaving us hopeful that much-needed amendments will soon come to fruition.

1.0 INTRODUCTION

Despair was felt by Malaysian women on the 5th of August 2022, when the Court of Appeal in Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal[1] overturned a previous High Court decision, effectively stripping Malaysian women of the ability to pass down citizenship to their children born outside of Malaysia.

The issue of citizenship in regard to Malaysian mothers and their foreign-born children is an ongoing debate spanning the course of several years. On the 18th of December 2020, Family Frontiers and a few affected Malaysian mothers filed an Originating Summons in the High Court against the government seeking a declaration that children born abroad to Malaysian women and foreign fathers are entitled to Malaysian citizenship by operation of law, in the same manner as children born abroad to Malaysian fathers.[2] It was contended that Article 14(1)(b) of the Federal Constitution, when read with section 1(c) of the Second Schedule, is discriminatory towards Malaysian women as only Malaysian men can confer citizenship to their overseas-born children whereas Malaysian women cannot. It was also pleaded that Article 14(1)(b) has to be read with Article 8 of the Federal Constitution.[3]

The High Court approached the interpretation of the Constitution via harmonious construction, following the case of Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd.[4] In the aforementioned case, Article 160(2) was held to need to be read together with Article 3(1), otherwise, it would render the provision absurd. In the present case, the High Court held that Article 14(1)(b) has to be read harmoniously along with Article 8(1) (being a provision under the chapter on fundamental liberties). Furthermore, while Article 8(2) is not absolute in its application per se, the express exceptions are provided for in Article 8(5). Ergo, the High Court held that Article 14(1)(b) is to be read in a way that is inclusive of Malaysian women.[5]

However, the Court of Appeal in the recent case of Mahisha[6] overturned the decision of the High Court, holding that the interpretation of the Federal Constitution must be to give effect to the intentions of the framers of the Constitution as per CTEB & Anor v Ketua Pengarah Pendaftaran Negara Malaysia & Ors.[7] It was held that the forefathers of the country fully intended that only fathers could pass down citizenship to their overseas-born children as per the Alliance Party Memorandum and the Reid Commission. In addition, Article 8(2) must not be given primacy over Article 14(1)(b) because all provisions of the Federal Constitution are of equal standing to one another, following the cases such as Dhinesh a/l Tanaphll v Lembaga Pencegahan Jenayah & Ors[8] which held both citizenship and fundamental liberties constitutes fundamental features of the Federal Constitution. In addition, as Article 8 may be amended via a two-thirds majority of Parliament as per Article 159(3), Part III of the Constitution also requires the consent of the Conference of Rulers; further reason as to why Article 8 should not be given primacy over Article 14.

With the Court of Appeal overturning the High Court’s decision, Malaysian women remain discriminated against by the country in terms of conferring citizenship to their overseas-born children. However, all hope is not lost. The Federal Court gave the Family Frontiers leave for their appeal to be heard by the aforementioned Court.

2.0 CITIZENSHIP ACCORDING TO THE CONSTITUTION

It appears that our constitutional provisions on citizenship are rife with patriarchal elements going against the spirit of gender equality guaranteed under Article 8:[9]

2.1 Acquisition of Citizenship by Operation of Law

Acquisition of citizenship by operation of law is provided for in Article 14(1)(b), applying to those born on or after Malaysia Day and fulfilling any of the qualifications specified in Part II of the Second Schedule.[10] Those qualifications include:

(a) those born within the Federation to at least one parent who is either a current citizen or permanent resident; and

(b) those born abroad whose father is currently a citizen of the Federation and either was born in the Federation or is currently in the service of the Federation or of a State; and

(c) those born abroad whose father is currently a citizen of the Federation and whose birth is, within one year of its occurrence or within a longer period as the Federal Government may allow, registered at a consulate of the Federation or, if it occurs in Brunei or in a territory prescribed for this purpose by order of the Yang diPertuan Agong, registered with the Federal Government; and

(d) those born in Singapore to at least one parent who is currently a citizen of the Federation and who is not born a citizen otherwise than by virtue of this paragraph; and

(e) those born within the Federation who are not born a citizen of any country otherwise than by virtue of this paragraph.[11]

From a plain reading of these provisions, emphasis is placed on the father being a Malaysian citizen for citizenship to be passed by operation of law to a child born abroad. Undeniably, gender biases exist as the mother’s citizenship is seemingly irrelevant and/or inferior in the passing down of citizenship. The court has disallowed the conferring of citizenship for children born out of lawful wedlock between a Malaysian mother and a foreign father by holding that the word father in the above provision does not include mother.[12]

However, interpretation of the word father is extended to also include mother in the case of illegitimate children to allow the granting of citizenship if born to a Malaysian mother, to avoid statelessness.[13] Ironically, when it comes to an illegitimate child of a foreign mother and a Malaysian father, the child's nationality depends on the foreign mother’s citizenship and the father's nationality is irrelevant.[14]

2.2 Acquisition of Citizenship through Registration

Article 15(1) entitles foreign wives of Malaysian men to be registered as citizens, with the fulfilment of specific criteria - a two year residence in Malaysia preceding the date of application with intent to continue to do so permanently and a good character.[15]

Regrettably, the same does not apply to Malaysian women who marry foreign spouses that wish to be registered as Malaysian citizens. Their spouses only have the option of applying for citizenship by naturalisation under Article 19(3), which requires, inter alia, a minimum ten year residence in the country preceding the application.[16]

2.3 Contradicting the Constitutional Guarantee of Equality

The foundation of all liberties stems from the principle of constitutional equality, which has long been regarded as a fundamental human right. This is reflected in Article 1 of the 1948 Universal Declaration of Human Rights (UDHR),[17] which states that all human beings are born free and equal in dignity and rights. Nationality denotes the legal connection between a person and a state, providing not only protection and security but also a sense of acceptance between individuals.

The issue of acquiring citizenship has been a source of contention, arguably against the spirit of Article 8 of the Federal Constitution. The constitutional guarantees under Article 8 aligns with Article 7 of the Convention on the Rights of the Child (CRC),[18] that every child shall have the right to acquire a nationality. Article 9 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)[19] also states that any State Parties shall grant women equal rights with men with respect to the nationality of their children. Malaysia is a signatory to both conventions.

In Kerajaan Malaysia & Ors v Suriani Kempe (Family Frontiers) & Ors,[20] a suit was filed seeking to declare the government’s failure, refusal, or omission to recognise the child as a citizen of Malaysia to be a violation of Article 8 of the Federal Constitution. The court interpreted Article 8(2) as a constitutional protection against gender discrimination. It is a ‘no discrimination’ safeguard to be enjoyed by all Malaysian citizens under any law in Malaysia. Therefore, it should be noted that the Malaysian mothers are also citizens and as such, they are entitled to the full protection and rights accorded under Article 8(2) of the Federal Constitution.

The equal rights of citizenship need to be considered as any inequality will deprive the development and enjoyment of both mothers and children.

3.0 CURRENT CHALLENGES FACED BY MALAYSIAN MOTHERS IN NOT BEING ABLE TO CONFER CITIZENSHIP TO THEIR CHILDREN

The Court of Appeal’s recent decision has impeded the fight to confer equal rights for Malaysian mothers as failure to grant their children citizenship will bring about adverse harms that limit basic fundamental rights. This can be seen through the following aspects:

3.1 Education

Education is a constitutionally protected right for all Malaysian citizens.[21] The Malaysian government heavily subsidises public education until the tertiary level. Although non-citizens can access schools in Malaysia, they are restricted in terms of public education.[22] This will affect students born overseas to Malaysian mothers. According to the Education Act, only citizen children can enrol in government or government-aided schools.[23] Those who are not citizens do have access, albeit extremely limited and subject to various requirements. Even if such requirements are met, accessibility is based on availability according to quota, which prolongs the enrolment process and is subject to annual fees. As a result of these onerous procedures, many are left with no choice except to enrol their children in international schools to prevent them from missing out on education.[24]

3.2 Healthcare

Though the term ‘healthcare’ is not expressly mentioned in the Constitution, the right to health is recognised.[25] In that respect, the Malaysian government also subsidises the national public healthcare system, rendering it affordable and accessible for citizens. However, private healthcare providers in Malaysia are not subsidised and therefore, costly. The payment for medical cases can be deemed unaffordable for many.[26] Though the government guarantees that every child, regardless of nationality, may acquire healthcare at any public health facility, non-citizen children are classified as foreigners and charged according to foreign patient rates.[27] Without government subsidies, mothers of these children are forced to bear higher fees for medical attention, with admission deposits ranging from RM500 to RM1200.[28] Non-citizens have been charged between 24 to 100 times more than citizens to access public hospital care since January 2016, after the Fees Act (Medical) 1951 was amended for foreigners.[29] This especially affects non-citizen children from low-income households.

3.3 Access and Welfare with Respect to Employment Opportunities

Upon reaching adulthood, non-citizen children face difficulties in finding job opportunities in both public and private sectors. The public service requires applicants to be Malaysians.[30] This limits children born overseas to Malaysian mothers if they wish to work in the public sector. Though non-citizens may work in the private sector, many companies are also looking for Malaysian citizenship as a requirement for employment. This leads to many without proper identity documentation working in the informal sector. Most stateless people support themselves on daily wages and have no formal contract between them and their employers due to their lack of documentation, making them subject to possibilities of labour exploitation.[31]

4.0 CRITICISMS AND SUGGESTIONS FOR REFORM

4.1 Malaysian Bar

The Malaysian Bar views the decision made in the Court of Appeal that the word “father” in Part II, Section 1(b) of the Second Schedule cannot be extended to include mother or both parents as regressive and outdated and clear discrimination on grounds of gender, violating Article 8 of the Constitution. The decision sends the message that a father’s lineage is superior to a mother’s.

The Malaysian Bar noted that for decades, mothers with children born abroad to a foreign husband have had to rely on Article 15(2) of the Constitution, which allows those under the age of 21 years old to apply for citizenship as long as one parent is a Malaysian citizen. However, there have been numerous instances of rejected applications, while the application process itself is tedious and time-consuming.

President of the Malaysian Bar, Karen Cheah also noted that Malaysia still keeps its reservation towards Article 9(2) of CEDAW which grants women equal rights with men in passing down citizenship to their children, despite being a signatory to CEDAW. She opines that such reservations are “archaic and have no place in modern society.”[32]

4.2 United Nations Human Rights Council (OHCHR)

UN experts have shared the same sentiment as the Malaysian Bar. The right to citizenship is the anchor for the enjoyment of other rights such as rights to education, healthcare, and freedom of movement. The law has been deemed discriminatory by several human rights mechanisms and concerns about denial of women equal rights with respect to the transmission of citizenship was raised in the Human Rights Council. Concerns of problems tied to statelessness and denial of the granting of citizenship to children have also been raised, such as exploitation and trafficking.

UN experts have called on the government to fulfil its responsibility under CEDAW and the CRC in interpreting Article 14(1)(b) and 8(2) of the Federal Constitution harmoniously.[33]

4.3 Proposed Constitutional Amendments

On 17 February 2023, Home Minister Datuk Seri Saifuddin Nasution Ismail and Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said announced via joint statement that Cabinet had agreed to amend the Federal Constitution in regard to citizenship. The proposed amendments are expected to be tabled during the current parliamentary session, and seeks to replace the phrase “whose father” in Part I and Part II of the Second Schedule with the phrase “at least one of the parents”. This is a step forward from the government in ensuring gender equality in conferring citizenship.[34]

5.0 CONCLUSION

The fight for Malaysian women’s rights in conferring citizenship to their overseas-born child remains ongoing. The recent decision by the Court of Appeal, while understandably upsetting, stems from a literal interpretation of the Constitution and stands as the lex loci. However, as noted by that Court itself, it is not the Judiciary’s job to rectify or make law. Parliament has to act and act fast, lest Malaysian women be denied the same rights afforded to their male counterparts. Fortunately, current plans have been announced to amend the patriarchal constitutional provisions on citizenship. Hopefully, these efforts and plans will come to fruition, for the betterment of Malaysian society and women’s rights, equality for all, and in the spirit of not leaving behind a single child from being protected by this State.

REFERENCES [1]Mahisha Sulaiha Abdul Majeed v Ketua Pengarah Pendaftaran & Ors and another appeal [2022] 5 MLJ 194. [2] Suriani Kempe (Presiden dan pemegang jawatan Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers) & Ors v Kerajaan Malaysia & Ors [2021] MLJU 1517. [3] See footnote 2 above. [4] Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 2 MLJ 257. [5] See footnote 2 above. [6] See footnote 1 above. [7] CTEB & Anor v Ketua Pengarah Pendaftaran Negara Malaysia & Ors [2021] 4 MLJ 236. [8] Dhinesh a/l Tanaphil v Lembaga Pencegahan Jenayah & Ors [2022] 3 MLJ 356. [9] Federal Constitution (Malaysia) art 8. [10] Federal Constitution (Malaysia) art 14(1)(b). [11] Federal Constitution (Malaysia) Second Schedule Part II. [12] See footnote 1 above. [13] See footnote 1 above. [14] See footnote 7 above. [15] Federal Constitution (Malaysia) art 15(1). [16] Federal Constitution (Malaysia) art 19(3). [17] Universal Declaration of Human Rights, GA Res 217 A (III), UN GAOR (10 December 1948), art 1. Retrieved from <https://www.refworld.org/docid/3ae6b3712c.html>. [18] Convention on the Rights of the Child, GA Res 44/25, UN GAOR (20 November 1989), art 7. Retrieved from <https://www.refworld.org/docid/3ae6b38f0.html>. [19] Convention on the Elimination of All Forms of Discrimination against Women, GA Res 34/180, UN GAOR (18 December 1979), art 9. Retrieved from <https://www.refworld.org/docid/3ae6b3970.html>. [20] Kerajaan Malaysia & Ors v Suriani Kempe (Family Frontiers) & Ors [2022] MLJU 1803. [21] Federal Constitution (Malaysia) art 12. [22] Fazurawati Che Lah (2020, June 25). Pendidikan untuk semua. Metro Harian. Retrieved from https://www.hmetro.com.my/nuansa/2018/06/351664/pendidikan-untuk-semua. Site accessed on 2 March 2023. [23] Education Act 1996 (Act 550) (Malaysia) s 90. [24] Ragu, D. (2021, Oct 8). We’ve been suffering for too long, say mums in citizenship rights quest. Free Malaysia Today. Retrieved fromhttps://www.freemalaysiatoday.com/category/nation/2021/10/08/weve-been-suffering-for-too-long-say-mums-in-citizenship-rights-quest/. Site accessed on 3 March 2023. [25] Federal Constitution (Malaysia) Ninth Schedule. [26] Loganathan, T, Chan. Z. X. & Pocock N. S. (2020). Healthcare Financing and Social Protection Policies for Migrant Workers in Malaysia. PLoS ONE, 15(12). Retrieved from https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0243629. Site accessed on 3 March 2023. [27] Nur Ezan Rahmat… Izuan Izzaidi Azmi (2021). Revisiting the Laws and Policies Related to Educational Rights of Stateless Children in Malaysia. International Journal of Academic Research in Progressive Education and Development. 10(3), 1174, 1777. Retrieved from https://hrmars.com/papers_submitted/11261/revisiting-the-laws-and-policies-related-to-educational-rights-of-stateless-children-in-malaysia.pdf. Site accessed on 4 March 2023. [28] Ragu, D. (2022, 12 Feb). Make a law to guarantee healthcare for all children, says doctor. Free Malaysia Today. Retrieved from https://www.freemalaysiatoday.com/category/nation/2022/02/12/make-a-law-to-guarantee-healthcare-for-all-children-says-doctor/. Site accessed on 2 March 2023. [29] (2020, Jan 10). Proposing a Non-Citizens Health Act for Malaysia. Malaysiakini. Retrieved from https://www.malaysiakini.com/letters/506622. Site accessed on 1 March 2023. [30] Herman. R. H. (2022). Mommy, Am I Malaysian? The Plight of Children Born Overseas to Malaysian Women. International Journal of Academic Research in Business & Social Sciences. 12(10). 2872, 2882. Retrieved from http://dx.doi.org/10.6007/IJARBSS/v12-i10/15247. Site accessed on 2 March 2023. [31] See footnote 30 above. [32] Malaysian Bar. (2022, August 9). Press Release | Discrimination and Double Standards When Women are Denied Right to Confer Citizenship on their Children. Malaysian Bar. Retrieved from <https://www.malaysianbar.org.my/article/about-us/president-s-corner/pressstatements/press-release-discrimination-and-double-standards-when-women-are-denied-right-to-confer-citizenship-on-their-children>. Site accessed on 1 March 2023. [33] United Nations: UN Office of the High Commissioner for Human Rights (OHCHR). (2022, September 5). Malaysia: UN experts denounce gender-discriminatory citizenship law. United Nations: UN Office of the High Commissioner for Human Rights (OHCHR). Retrieved from <https://www.ohchr.org/en/press-releases/2022/09/malaysia-un-experts-denounce-gender-discriminatory-citizenship-law> Site accessed on 28 February 2023. [34] New Straits Times. (2023, February 18). Citizenship greenlight for overseas-born children of Malaysian mothers via constitutional amendment. New Straits Times. Retrieved from <https://www.nst.com.my/news/government-public-policy/2023/02/881116/citizenship-greenlight-overseas-born-children-malaysian>. Site accessed on 4 March 2023.