On Friday (5 August), the Court of Appeal (CoA) allowed the government’s appeal against an earlier High Court ruling that affirmed Malaysian mothers’ right to grant citizenship to their children born overseas, on equal basis to Malaysian men.
The CoA’s decision comes after the Malaysian government filed an appeal on 14 September against the Kuala Lumpur High Court’s ruling.
On 9 September, Judge Akhtar Tahir ruled that the word “father” in the Second Schedule of the Federal Constitution must also include mothers.
He also said that Article 14(1)(b) of the Federal Constitution together with the Second Schedule, Part II, Section 1(b) of the Federal Constitution, pertaining to citizenship rights, must be read in accordance with Article 8(2) of the Federal Constitution, which prohibits gender discrimination.
Judge Datuk Seri Kamaludin Md Said, who chaired the three-person bench, was one of the judges who gave the majority decision. Similarly Judge Datuk Azizah Nawawi gave the same decision.
Datuk S. Nantha Balan was the only judge on the panel who disagreed, pointing out that Malaysia’s citizenship laws discriminated against Malaysian women by not allowing them to pass on citizenship to their children born overseas.
Breaking: The Fight Goes On For Malaysian Women as Court of Appeal Overturns High Court Decision in Suriani Kempe Case.— Family Frontiers #sayaJUGAanakMalaysia (@FamilyFrontiers) August 5, 2022
The Court of Appeal in a 2-1 decision overturns the landmark High Court decision in Suriani Kempe & Ors v Government of Malaysia & Ors. pic.twitter.com/0qCdgQ7sOQ
In their majority decision, the bench said the word “father” in the Second Schedule of Part 11 of the Federal Constitution means the biological father and cannot be extended to include the mother or “parents”, reported FMT.
Kamaludin and Azizah said that it was up to Parliament to rewrite the constitution.
Meanwhile, the CoA said status quo should be maintained for the overseas-born children of the six Malaysian mothers who had obtained Malaysian citizenship papers until the Federal Court decides on their appeal.
This means that the government should not revoke their citizenship papers while they are still appealing against today’s decision.
The CoA also said that the ministry should not reject the application from other Malaysian mothers who are not part of the lawsuit and had also applied for their overseas-born children to be given citizenship documents by the NRD. Instead, their application should be frozen.
“Whatever granted, leave it, don’t disturb it. Whatever pending, leave it in suspended animation pending disposal of appeal,” Nantha Balan said.
“Whatever pending should not be rejected, just freeze it,” he added.