CHILDREN OF MALAYSIAN MOTHERS BORN OVERSEAS – MALAYSIAN CITIZENSHIP – FOREIGN BORN CHILDREN TO MALAYSIAN MOTHERS

In brief

•  Malaysia is one of 25 countries that do not provide mothers and fathers equal rights under the country’s citizenship legislation,” according to news sources. The Malaysian constitution grants fathers the automatic right to confer citizenship on their children born outside the country, but it makes no mention of mothers.
•  Six Malaysian women filed a lawsuit against the government in December 2020, with the help of the Association of Family Support and Welfare Selangor & KL (known as Family Frontiers). The mothers had requested for citizenship for their children born abroad, but the government had turned them down. They had asked the court for six specific orders, including “a declaration that Section 1(b) and Section 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 given automatic Malaysian citizenship.”

What is the right to citizenship of children born overseas to Malaysian mothers?

•  “Every individual born on or after Malaysia Day [i.e., independence], and having any of the criteria mentioned in Part II of the Second Schedule” is a citizen by operation of law, according to Article 14(1)(b) of the Federal Constitution. Part II of the Second Schedule, Section 1(b) and (c), reads as follows:

1. The following persons, born on or after Malaysia Day, are citizens by operation of law, subject to the requirements of Part III of this Constitution:

b) every person born outside the Federation whose father is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State

c)  every person born outside the Federation whose father is at the time of the birth a citizen and whose birth are, within one year of its occurrence or within such longer period as the Federal Government may in any particular case 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; …

Q. If I’m a Malaysian citizen but my child is born overseas. Does my child have the right to citizenship in Malaysia?

A. Yes, according to Family Frontiers, the High Court judge ruled that the word “father” in section 1 of the Second Schedule must be read to include mothers, and that the children born abroad are thus entitled to citizenship by operation of law.

• As previously stated, the plaintiffs argued that these provisions should be read in accordance with article 8(2) of the Constitution, which states as follows: Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment.

Decision by the courts

•  On September 9, 2021, the High Court Judge, YA Haji Akhtar bin Tahir, delivered his Lordship’s decision orally during a virtual hearing via Zoom. The learned High Court Judge acknowledged that the Federal Constitution’s provisions are discriminatory and that “discrimination is obvious.” Despite a previous hearing, the High Court noted that the Government had failed to justify the discrimination in Sections 1(b) and 1(c) Second Schedule FC in their affidavits.
•  Furthermore, the High Court acknowledged that the right to citizenship is a fundamental liberty. To prevent any provisions from being insignificant, the provisions of the Federal Constitution must be interpreted harmoniously and purposefully. As a result, Sections 1(b) and 1(c) must be interpreted in accordance with Article 8 FC to reflect equality before the law. As a result, the High Court ruled that the words “father” in Sections 1(b) and 1(c) of the Second Schedule FC should be interpreted harmoniously to include “mother.” The High Court effectively ruled that children born abroad to Malaysian mothers are citizens by default under Sections 1(b) and 1(c) of the Second Schedule FC.