PUTRAJAYA: The Court of Appeal has made an order that the citizenship granted to the children of six mothers will remain intact until the outcome of an appeal.
Justice Kamaludin Md Said, chairing a three-member bench, said the status quo would remain so as not to inconvenience all parties, including the children who were born overseas to Malaysian mothers.
The children were granted citizenship after the Kuala Lumpur High Court refused the government’s request to stay its order last September.
Earlier today, Kamaludin and Azizah Nawawi, who were in the majority, ruled that children born overseas to Malaysian mothers can be denied citizenship by operation of law.
They said the word “father” in the Second Schedule of Part 11 of the Federal Constitution referred to the biological father and cannot be extended to include the mother or parents.
The two judges said they were following legal principles in a Federal Court ruling made last year and that it was up to Parliament, not the court, to rewrite the constitution.
S Nantha Balan, who dissented, said the present legal status of the mother’s bloodline was made to look inferior to the father.
He said Article 14, which allowed children outside the federation to obtain citizenship, was discriminatory as it violated the equality provision.
He said the denial of citizenship also went against international law of which Malaysia was a party.
Today’s ruling was made in favour of the government, the home minister and the director-general of the national registration department (JPN), who are appearing as appellants and respondents in two cases.
Last year, High Court judge Akhtar Tahir ruled that the government must grant citizenship to children born abroad to Malaysian mothers as the word “father” in the Second Schedule of the constitution must mean and include mothers.
Akhtar had allowed for several declaratory reliefs sought by an NGO and six mothers that certain provisions on citizenship in the constitution were discriminatory.
In the second case, the Court of Appeal dismissed the appeal of Mahisha Sulaiha, born to her Malaysian mother and Indian national father in India. She was appealing a 2020 High Court ruling that was in opposition to Akhtar’s decision.
Meanwhile, lawyers Gurdial Singh Nijar and Raymond Mah, who represented the mothers and Mahisha, respectively, said they have obtained instructions to go to the Federal Court.
Gurdial said novel questions of law had to be framed within 30 days to obtain leave before the merit of the case could be heard.
Mah said the apex court should grant leave as the Court of Appeal was divided and the question of whether the word “father” should include “mother” had not been determined.
Mahisha, also represented by Cyrus Das, Jasmine Wong, and Eric Toh, has not obtained citizenship by way of naturalisation.
The mothers and the NGO were also represented by Ngeow Chow Ying, Gan Pei Fern, Joshua Andran, Loh Suk Hwa, Abraham Au and Denishia Rajendran.
Senior federal counsel Ahmad Hanir Hambaly and Liew Horng Bin as well as federal counsel Sallehuddin Md Ali appeared for the government.