It was only in September last year that Aliran welcomed a High Court decision that children born overseas to Malaysian mothers with foreign spouses would be eligible for Malaysian citizenship.
Prior to that landmark High Court decision, only children born overseas to Malaysian fathers with foreign spouses were entitled to citizenship.
The proponents and supporters of this court decision had fought hard to challenge the clearly fundamental discrimination against women.
The High Court judge ruled that Article 8(2) of the Constitution on equality prohibits discrimination based on gender and so the word father in the Second Schedule, Part II, Section 1(b) should also include mothers, and their children are entitled to citizenship by operation of the law as well.
But the joy was short-lived. The Court of Appeal, in a majority decision on 5 August 2022, overturned the High Court decision.
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Of course, this would not have happened if only the government had accepted the wisdom of the High Court decision and heeded the appeal of many concerned citizens and civil society groups, including Family Frontiers, not to appeal the High Court decision.
But what’s done is done. We must duly respect and honour the court process and await a final appeal to the Federal Court to review the decision of the Court of Appeal.
The majority decision made by two of the three Court of Appeal judges was that the word father in the Federal Constitution under the Second Schedule, Part II, Section 1(b) cannot extend to mothers. In their judgment, the judges pointed out that only Parliament could rewrite the Constitution for these amendments.
The lone dissenting judgement argued that recognising only the father would be outright discriminatory, as if saying “the mother’s bloodline is ‘inferior’ to the father’s bloodline”.
Legal arguments aside, it is important we move away from simply looking at the letter of the law to appreciating the importance of recognising gender equality and non-discrimination of women.
In this particular instance, Aliran echoes the calls of several parties who have urged MPs to right a wrong by amending the relevant section of the Constitution to remove any ambiguity and misinterpretation so that Malaysian mothers will have equal rights as Malaysian fathers.
This move will certainly be consistent with the keluarga Malaysia (Malaysian family) concept that the government has been championing.Aliran executive committee
7 August 2022