Commentary on Suriani Kempe v. Kerajaan Malaysia
Despite being one of the fast-growing countries in the Southeast Asian region, Malaysia falls behind from the 150 countries across the globe that have amended their legislations giving women the equal right to confer citizenship to their children regardless of the children being born abroad or whether their spouses are foreign nationals[1]. Seeking citizenship right for the children born overseas is of critical importance to Malaysian mothers, especially when the mothers reside in Malaysia and their children who are non-Malaysians do not enjoy free basic access to education, healthcare and other rights enjoyed by Malaysian citizens.
A glimpse overview on provisions on citizenship by operation of law under the Federal Constitution which is Article 14(1)(b) read together with Part II of the Second Schedule[2]:
(1) Subject to the provisions of this Part, the following persons are citizens by operation of law, that
is to say: (b) every person born on or after Malaysia Day, and having any of the qualifications
specified in Part II of the Second Schedule.
cross refer with section 1(b) Second Schedule: Part II:
1. Subject to the provisions of Part III of this Constitution, the following persons born on or after
Malaysia Day are citizens by operation of law, that is to say: (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 …[3]
By reading the provisions above, there is a distinct line between a child born in the Federation and a child born out of the Federation whereby the former gives automatic citizenship by law if either father or mother is a citizen of the Federation. While the latter only becomes a citizen if and only the father is a Malaysian citizen. This essentially means that a child born overseas will not be conferred Malaysian citizenship if the parent who is the citizen of Malaysia is the mother. However, the provision in Article 14(1)(b) and Part II of the Second Schedule are in conflict with Article 8(2) which guarantees no discrimination against citizens on the ground of religion, race, descent, place or gender in any law[4].
The 2021 landmark judgment in Suriani Kempe & Ors v Kerajaan Malaysia & Ors [2021] 12 MLJ 558
The case of Suriani Kempe (President and office bearer of Persatuan Kebajikan Sokongan Keluarga Selangor & Kuala Lumpur (Family Frontiers)) & Ors v Kerajaan Malaysia & Ors[5] illustrates the real scenario of how gender-biased and discriminatory citizenship law could affect the Malaysian mothers with their overseas-born children. The Plaintiff was the President of Woman’s Association called Family Frontiers which involves with the wellbeing and upbringing of families in Malaysia. The case went to the High Court level where the Plaintiff sought a declaration that both Articles 14(1)(b) and Part II of the Second Schedule are discriminatory towards women and as such, the provisions should be read harmoniously with Article 8(2) of the Federal Constitution. On 9 September 2021, Akhtar Tahir J ruled that citizenship provisions are important and so are provisions of fundamental liberties. Therefore, there is no apparent justification for distinction between the child born in the Federation and the child born out of the Federation.
The Court of Appeal’s overturn judgment
The victory for Malaysian women did not last long when the Government of Malaysia appealed to the Court of Appeal in Kerajaan Malaysia & Ors v Suriani Kempe (Pengerusi dan Pemegang Jawatan Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers)) & Ors and another appeal[6]. The Court of Appeal in a 2-1 majority decision overturned the landmark High Court judgment on 5 August 2022 and held that by the amendment to Article 8(2) in 2001, gender discrimination was constitutionally unlawful unless such discrimination was ‘expressly authorized’ by the Federal Constitution itself. Thus, gender discrimination prescribed in Article 14(1)(b) read together with Part II of the Second Schedule is exceptionally legitimized and permitted under the Federal Constitution. It was ruled that despite the contradiction between Article 14(1)(b) read with section 1(b) Part II of the Second Schedule and Article 8(2), the word ‘father’ in that provision is clear and unambiguous and it was ruled not to be construed to include ‘mothers’, nor it could be interpreted to mean ‘parents’. Article 8(2) of the Federal Constitution was amended back on 28 September 2001 granting protection from gender discrimination to all Malaysian citizens, unless such discrimination was expressly authorized by the Federal Constitution itself.
The Court of Appeal recognized that the provisions are inherently discriminatory of the rights of Malaysian mothers whose children do not enjoy the privilege of citizenship by operation of law due to the circumstances that their spouses are foreign nationals and their children were born abroad. It is plainly inescapable to deny that gender discrimination does exist in the provisions of the Federal Constitution. However, as much as the provisions in the Federal Constitution should be interpreted generously and liberally particularly on provisions that protect fundamental rights, the courts have no liberty to widely expand the language of the Federal Constitution and take over the role of the Legislature. This was the warning by Abdoolcader J (as he then was) in Merdeka University Berhad v Government of Malaysia[7]:
I said in Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 ... that the
Constitution is not to be construed in any narrow or pedantic sense (James v Commonwealth of
Australia [1936] AC 578) ... but this does not mean that a court is at liberty to stretch or pervert the
language of the Constitution in the interests of any legal or constitutional theory, or even, I would
add, for the purpose of supplying omissions or of correcting supposed errors. (Emphasis added.)
When construing words in the Federal Constitution, the court should give their widest possible meaning without changing the literal meaning of the language. And when construing interrelated provisions, the court should read them as a whole having regard to the purpose and original intention of the framers of the Federal Constitution and harmonize their collective meaning. In fact, the Court of Appeal referred to Federal Court decision in CCH & Anor (on behalf of themselves and as litigation representatives of one CYM, a child) v Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia[8] whereby citizenship by operation of law is a fundamental and constitutional right. It leaves absolutely no room for the exercise of subjective notions on what citizenship is. The words citizenship ‘by operation of law’ could not be any clearer, and there is no room whatsoever for discretion nor interpretation.
The case was supported by CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & 2 Ors[9] where the Federal Court also ruled that the fundamental rule in interpreting the Federal Constitution or any written law is to give effect to the intention of the framers. The court cannot insert or interpret new words into the Federal Constitution, “The court cannot at its own fancy attempt to rewrite the clear written text of the FC because it would only lead to absurdity.”
Article Case Commentary on Suriani Kempe v Kerajaan Malaysia[10] which was authored by Malaysian Constitutional expert, Emeritus Professor Datuk Dr Shad Saleem Faruqi expressly hoped for development in regard to the interpretation of the provision on citizenship by operation of law, “Like all Constitutions, some provisions of our 64-year old Constitution reflect our patriarchal past.” … “Finally, it is submitted that the constitutional provisions on citizenship drafted 64 years ago cannot remain static. Their interpretation must be guided by the fresh flows generated by the constitutional amendment of Art 8(2). The 2001 provision on gender equality is not a window-dressing but a mighty tributary whose waters are meant to enrich all other streams of the law.”
Malaysia’s Accession to CEDAW and CRC
Article 9(2) the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) expressly provides that the State shall grant women equal rights with men with respect to the nationality of their children[11]. This crucial provision ensures women’s equal rights with men including the right to acquire, change or retain their nationality and ensure that women are not deprived of their nationality on the grounds of marriage, divorce or widowhood. In this Court of Appeal case, there was no dispute that Malaysia acceded to not only CEDAW but also the Convention on the Rights of the Child (CRC) in 1995. In fact, Article 8(2) which was amended with effect on 28 September 2001 to abolish gender discrimination was the Government’s effort to comply with CEDAW. However, despite the progress made in 2001, challenges remain in the implementation of Article 9(2) of CEDAW into the Federal Constitution’s citizenship provisions. There are reservations as much as Malaysia’s accession is subject to CEDAW and CRC. Thus, although Malaysia acceded to CEDAW and CRC, the provisions relating to citizenship in CEDAW and CRC are not applicable and cannot override the citizenship provisions in the Federal Constitution.
Leave to Appeal to Federal Court and Government’s Effort to Table Citizenship Issues on Parliament
Now that the Federal Court has allowed Family Frontiers’ application for leave to appeal in December 2022 against the decision of the Court of Appeal, Malaysian mothers with overseas-born children are hoping for amendment of Article 14 of the Federal Constitution (#PindaPerkara14) and for the decision of the High Court to be restored so as to guarantee their children’s rights to citizenship and to halt gender discrimination against women in Malaysia.
On 17 February 2023, the unity government led by Home Minister Datuk Seri Saifuddin Nasution Ismail and Law and Institutional Reform Minister Datuk Seri Azalina Othman Said has agreed with the proposal to amend the citizenship provisions in the Federal Constitution to allow automatic citizenship to children born overseas of Malaysian mothers. There are several provisions that will be tabled in the Dewan Rakyat meeting among others includes amendment to word ‘father’ in section 1(b) in Part II of the Second Schedule to ‘at least one of the parents’ to allow Malaysian mothers to acquire their parental rights to confer citizenship to their children[12]. For the record, ensuring citizenship rights was one of Pakatan Harapan’s pledges in the previous 15th General Election (GE 15) manifesto.
The issue of citizenship has been a contentious topic across the country. While some nations have progressed towards more inclusive laws, others continue to cling to outdated and discriminatory legislations. One of the most significant obstacles to reforming these laws is the lack of political will. Without a commitment from government leaders to address the issue, it is difficult to make progress towards more just and equitable citizenship laws. However, there are signs of hope, with the unity government beginning to act and acknowledge the need for amending the Federal Constitution which has been around for more than 60 years. The citizenship law remains the same, Malaysian mothers still have to wait for their rights to confer citizenship to their overseas born children.
[1] The Star (2022). It’s gender discrimination, says Wanita MCA chief of ‘archaic’ citizenship laws. Retrieved from https://www.thestar.com.my/news/nation/2022/08/14/it039s-gender-discrimination-says-wanita-mca-chief-on-039archaic039-citizenship-laws
[2] Art. 14(1)(b) Federal Constitution
[3] Part II, Second Schedule, Federal Constitution
[4] Art 8(2) Federal Constitution
[5] [2021] 12 MLJ 558
[6] [2022] MLJU 1803
[7] [1981] 2 MLJ 356
[8] [2022] 1 MLJ 71
[9] [2021] 4 MLJ 236; [2021] 6 CLJ 471
[10] [2021] 4 MLJ cxlix
[11] Art 9(2) CEDAW
[12] MalaysiaKini (2023), Govt to table cabinet paper on amending citizenship laws by Feb – Saifuddin. Retrieved from https://www.malaysiakini.com/news/650875
Authored by Hussaini Rozi
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