“Whether a child born overseas to a foreign Father and to a Malaysian Mother can acquire Malaysian citizenship automatically by operation of law under the Federal Constitution?”

MAHISHA SULAIHA ABDUL MAJEED v. KETUA PENGARAH PENDAFTARAN & ORS & ANOTHER APPEAL* [2022] 1 LNS 1754 – COURT OF APPEAL

• There are two appeals fixed before the Court of Appeal;

         a)  Appeal 273= Mahisha Sulaiha v Ketua Pengarah Pendaftaran & Ors

         b)  Appeal 531= Kerajaan Msia & Ors v Suriani Kempe & Ors

• In Appeal 273, Mahisha Suhaila who was born in India whose Mother is Malaysian and Father and Indian citizen respectively, is appealing against the decision of the Kuala Lumpur High Court for dismissing her application for citizenship.

• In Appeal 531, the Government of Malaysia, the Minister of Home Affairs and the ‘Ketua Pengarah Jabatan Pendaftaran Negara’ (“collectively known as the “GOM”) is appealing against the decision of the Kuala Lumpur High Court for granting the citizenship to the children of the six Malaysian mothers in the civil action. For the purposes of this Update, we will only be dealing with ‘Appeal 531’ as the main issue on law revolves around this civil action.

• The 1^st Respondent is Suriani Kempe, the President and Office Bearer of Association of Family Support & Welfare Selangor & Kuala Lumpur (“Family Frontiers”). The 2^nd to 7^th Respondents (“Mothers”) are the Malaysian Mothers who are married to foreign spouses who had given birth to their children outside Malaysia.

• It is not in dispute that the children had acquired the citizenship of their father’s nationalities. It is also not in dispute, in any event that none of their children are without a citizenship or stateless.

• The Mothers have applied for their children’s Malaysian citizenship by registration pursuant to Article 15(2) of the Federal Constitution (“FC”). However, their applications have since been rejected by the relevant public authorities.

• Therefore, the Mothers proceeded to filed an action in the High Court seeking orders that their children are entitled to Malaysian citizenship by operation of law under Article 14[1](b) read together with the 2^nd Schedule, Part II, Section 1(b) and/or Section 1(c) of the FC.

• The Mothers contended that the word ‘father’ in Article 14[1](b), Part II, Section 1(b) of the 2^nd Schedule shall be interpreted to mean either parent, that is father or mother.

• The GOM on the other hand took the position that the word ‘father’ in the referred provisions is clear and unambiguous and must be given a plain and ordinary meaning. It simply means biological father.

• The word ‘father’ can only refer to ‘mother’ if it is specifically mentioned as provided for in Part III on Citizenship of the FC.

HIGH COURT

• The High Court was in favour of the Mothers application and granted an order that on the proper reading of Article 14[1](b) and 2^nd Schedule of Part II of the FC, the word ‘father’ includes mothers as well and therefore the children of the Mothers and all other women faced with similar situation are entitled to citizenship by operation of law.

• In a split decision, the Court of Appeal ruled that children born overseas to Malaysian mothers can be denied citizenship by operation of the law. The Court held that the word “father” in the 2^nd Schedule of Part II of the Federal Constitution meant the biological father and cannot be extended to include the mother or parents.

• The Court further held it was up to Parliament, not the Judiciary, to rewrite the Federal Constitution.

• The Court of Appeal concluded that the word ‘father’ must be given a plain and ordinary meaning and it simply means father, not parents or mother.

• The dissenting Judge concurred with the High Court.