By Goh Siu Lin
The Suri Kempe case is a landmark case.
Here, six Malaysian mothers (with foreign spouses) sought the court’s declaration that Article 14(1)(b) of the Federal Constitution, relating to citizenship by operation of law, should be read harmoniously with Article 8 to grant automatic citizenship rights to their overseas-born children.
Article 8(2) of the Constitution forbids gender discrimination.
The law as it stands grants Malaysian citizenship automatically to a child born overseas to a Malaysian father and his foreign spouse but not to a child born to a Malaysian mother and her foreign spouse.
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This provision is blatantly discriminatory against Malaysian mothers who through their bloodline wish to pass on citizenship to their children, regardless of where these children are born.
This is the crux of the decades-long efforts by civil society to lobby for constitutional amendments for citizenship equality for Malaysian mothers.
The court action alongside intense lobbying efforts prompted the government to propose an amendment to the Federal Constitution to interpret the word “parent” to mean both father and mother and not just the father.
This inclusive amendment is most welcome.
However, there is worry that five regressive constitutional amendments are being bundled together with this amendment.
These five amendments, if passed, will remove safeguards against statelessness and worsen homegrown statelessness.
Some information about the five regressive amendments:
- In situ stateless persons, children born out of wedlock, adopted or abandoned stateless children and indigenous communities will no longer be constitutionally protected against statelessness
- Foundlings and abandoned children will no longer be entitled to citizenship by operation of law
- Children born to permanent residents will no longer have access to automatic citizenship, posing a risk of multi-generational statelessness for the children of stateless permanent residents
- The reduction of the age limit for applying for citizenship from “21 years” to “18 years” will limit the time for processing and appeals. This risks worsening statelessness among young adults
- An amendment aimed at deterring marriages of convenience will allow the revocation of Malaysian citizenship granted to the foreign wives of Malaysian men if the marriage dissolves within two years. This raises concerns about trapping spouses in potentially abusive marriages due to the risk of becoming statelessness, as they would have to relinquish their original nationality and would lack legal protection against statelessness
Parliamentarians need to carefully review, research, debate and engage with all relevant stakeholders. They also need to secure hard data before making a final decision on these far-reaching regressive amendments.
Policymakers need to address the many configurations of international families and the citizenship issues arising from children born out of surrogacy arrangements, whether born locally or overseas.
Malaysia should strive towards becoming a zero-stateless nation, like Kyrgyzstan.
Goh Siu Lin, a family and child rights lawyer, is the former chairperson of the KL Bar committee and former chairperson of the Bar Council family law committee.
She delivered these remarks during a panel discussion following a screening of the movie Abang Adik at the Prangin Mall Cineplex in Penang on 26 May 2024.
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