The Joint Action Group for Gender Equality (JAG) is deeply disappointed by the decision of the Court of Appeal on 5 August, which denied the rights of Malaysian mothers in conferring citizenship to their children born overseas.
The Court of Appeal, in a majority of 2 to 1, arrived at its decision by interpreting that the word father used in the Federal Constitution cannot be interpreted harmoniously to include mother.
The Court of Appeal, in deciding the appeal of the government in the Suriani Kempe case and the appeal of Mahisha Sulaiha, an adult child born overseas to a Malaysian mother, further held that when Malaysia amended Article 8(2) of the Federal Constitution in 2001 to protect against gender discrimination, the amendment was not intended to alter or affect the citizenship provisions in the Federal Constitution.
As a result of the narrow and restrictive approach taken by the Court of Appeal, of the 193 member states of the UN, Malaysia remains one of 25 countries that deny women the right to confer nationality on their children on an equal basis with men.
The Malaysian government is urged to amend the Federal Constitution by recognising the rights of Malaysian mothers to confer Malaysian citizenship to their children, regardless of where they were born.
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In adopting a literal interpretation of the Constitution, the Court of Appeal departed from the Lee Kwan Woh v Public Prosecutor decision, in which the Federal Court held that the Federal Constitution must be read through a “prismatic lens” to ensure the fundamental rights guaranteed under the Federal Constitution are upheld.
“On no account should a literal construction be placed on [the Constitution’s] language, particularly upon those provisions that guarantee to individuals the protection of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged in the concepts employed by the several provisions under Part II.” [emphasis added]
Indeed, ‘judicial activism’ encourages courts and judges to apply golden and purposive approaches to ensure fundamental liberties and address injustices.
JAG echoes Justice Nantha Balan in his dissenting judgement, in which he rightfully (or boldly) applies a judicial activism lens in giving hope to the mothers and children who have long suffered injustices.
Justice Nantha Balan recognised that there is “plainly and patently a conflict” between the citizenship provisions and the principle of gender equality in the Federal Constitution. The conflict implies that the “bloodline of Malaysian mothers would be treated as inferior to that of fathers” and such discrimination is “illogical, perverse and degrading”.
Beyond citizenship, the majority panel decision raises concerns over the interpretation, fulfilment and enjoyment of the principle of equality in Article 8 of our Federal Constitution. This decision sets a dangerous precedent that can be applied in other gender discrimination cases to ignore the sanctity of gender equality within the ambit of fundamental liberties, for the operation of laws.
JAG would like to remind the Malaysian government of its international obligations under the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw) and the Convention on the Rights of the Child. Malaysia acceded to these conventions in 1995 but has decided to maintain reservations on certain clauses, particularly on the citizenship rights accorded to Malaysian women and children.
With these reservations in place, our women and children will continue to be discriminated against and continue to suffer from derogation of their rights. The government ought to address these violations of rights of Malaysian women and children with urgency, especially with Malaysia being on the UN Human Rights Council.
JAG calls upon our elected representatives to move for the reform of the constitutional provisions in the Federal Constitution to protect and uphold gender equality so that “equality before the law” can be truly enjoyed by Malaysians.
Malaysian women and children should not be allowed to suffer and be oppressed any further.
Endorsed by the Joint Action Group for Gender Equality (JAG), specifically:
● Association of Women Lawyers (AWL)
● All Women’s Action Society (Awam)
● Family Frontiers
● Justice for Sisters
● Kryss Network
● Sabah Women’s Action-Resource Group (Sawo)
● Sarawak Women for Women Society (SWWS)
● Sisters in Islam (SIS)
● Perak Women for Women Society (PWW)
● Women’s Aid Organisation (WAO)
● Women’s Centre for Change (WCC)