Govt bid for a stay on citizenship ruling to be heard Nov 15

Govt bid for a stay on citizenship ruling to be heard Nov 15

KUALA LUMPUR – The high court here yesterday fixed November 15 to hear the government’s application for a stay on its ruling that children born overseas to Malaysian women married to foreigners are entitled to Malaysian citizenship.

Counsel Joshua Andran, who confirmed the matter to Bernama, said the date was fixed during case management before deputy registrar Maslinda Selamat.

The government filed the application for a stay pending disposal of its appeal at the Court of Appeal.

On September 9, judge Datuk Akhtar Tahir ruled that children born overseas to Malaysian women who are married to foreigners are entitled, by operation of law, to be citizens of Malaysia.

The government then filed an appeal against the decision.

The ruling allowed a legal suit filed by Family Frontiers and six Malaysian women married to foreigners for their overseas-born children to have the right to become Malaysian citizens.

In an originating summons (OS) filed on December 18 last year, they are seeking six specific court orders, including a declaration that Sections 1(b) and 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 automatically given Malaysian citizenship.

They are also seeking a court order for the relevant government agencies, including the National Registration Department (NRD), Immigration Department and Malaysian embassies, to issue all documents relating to citizenship to children born abroad to Malaysian mothers.

They named the government, home minister and NRD director-general as the defendants.

In a 24-page written judgment made available to the media yesterday, Akhtar ruled that there is no abuse for the plaintiffs in bringing the action against the defendants, and the plaintiffs have locus to file the OS. 

“In a further submission, the defendants raised various issues on the plaintiffs’ locus in bringing this action. The first is that citizenship is a privilege rather than a right, therefore, the plaintiffs are stopped from making a claim to 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.”

He said the second issue raised on locus by the defendants is that the persons aggrieved are the children who have not been given citizenship, and not their mothers, therefore, the mothers can only bring a representative action on behalf of their children.

“It is noted by the court that the mothers have highlighted in their affidavits the grievances they are facing over their children not being granted citizenship. 

“This includes enrolment in school, additional expenses in education, healthcare, and many other problems. The defendants in their affidavit did not challenge any of these grievances faced by the mothers.

“So, it is illogical to argue that only the children are aggrieved, and not the mothers. By not disputing the grievances faced by the plaintiffs, the defendants have accepted the grievances faced by the mothers are real and not mere conjecture.”

The third issue raised by the defendants is that the plaintiffs are abusing the process of law by coming to court only after their application for citizenship was rejected under Article 15 of the 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 locus. In this case, it is 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 locus to file this OS.”

In summing up the issue, Akhtar said the court reiterates that it is not seeking to change the government’s policy of granting citizenship. 

“The government’s policy on citizenship for children born out of the Federation was already decided during the time of the second prime minister. The defendants have painstakingly adduced extracts of the Hansard that show the government decided to adopt the principle of ‘jus sangunis’ to confer citizenship on children born out of the Federation on and above children born in the Federation. To this end, Article 14(1) (b) of the constitution, the impugned provision, was enacted.

“This court further reiterates that it is not seeking to change the policy or rewrite the law that has already been enacted by the government. What the court has endeavoured to do is apply the existing law and policy in a manner that will find a remedy to the grievances of the plaintiffs. The court is surely empowered to do this.

The grievances of the plaintiffs are real, and the defendants must not bury their heads in the sand like an ostrich and state that there is no grievances or discrimination. The court has already stated that the discrimination against the mothers is apparent.”

He concluded that Article 8(2) on equality, which prohibits discrimination based on gender, also means that the word “father” in the 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 law.

“With regard 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 children born out of the Federation.” – Bernama