Wednesday, October 27, 2021

Nov 15 hearing for govt’s bid to stay ruling on equal citizenship

High Court judge says in his written judgment that the grievances of the plaintiffs are real.

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The High Court in Kuala Lumpur has fixed Nov 15 to hear the government’s application for a stay of the court’s ruling that children born overseas to Malaysian women married to foreigners are entitled to be citizens of Malaysia.

Counsel Joshua Andran, who confirmed the matter when contacted by Bernama, said the date was fixed during a case management before deputy registrar Maslinda Selamat.

The government had filed the application for a stay pending the disposal of its appeal to the Court of Appeal.

On Sept 9, judge Akhtar Tahir ruled that children born overseas to Malaysian mothers who are married to foreigners are entitled by operation of law to be citizens of Malaysia.

The government subsequently appealed against the court’s decision.

The decision allowed a legal suit filed by the Association of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) and six Malaysian women who are married to foreigners for their overseas-born children to have the right to become Malaysian citizens.

In an originating summons filed on Dec 18 last year, they sought six specific court orders, including a declaration that Section 1(b) and Section 1(c) of the Second Schedule, Part II of the Federal Constitution be read harmoniously with Article 8(2) to include Malaysian mothers as a condition for children born abroad to be given automatic Malaysian citizenship.

They also sought, among others, a court order for all relevant government agencies, including the National Registration Department (JPN), immigration department and Malaysian embassies, to issue all documents relating to citizenship (including passports and identity cards) to children born abroad to Malaysian mothers with foreign spouses.

They named the Malaysian government, the home minister and the director-general of JPN as defendants.

In a 24-page written judgement made available to the media, the judge ruled that there was no abuse for the plaintiffs in bringing the action against the defendants and that the plaintiffs had the locus to file the originating summons.

“In a further submission, the defendants have raised various issues of the plaintiffs’ locus in bringing this action. The first is that citizenship is a privilege rather than a right and therefore the plaintiffs are stopped from making a claim to the citizenship for their children.

“The short reply of the court to this argument is that, even if the granting of citizenship is a privilege it must be offered without discrimination. It does not address the discrimination issue,” the judge said.

Akhtar said the second issue raised on locus by the defendants was that the persons aggrieved are the children who have not been given citizenship and not the mothers therefore the mothers can only bring a representative action on behalf of the children.

“It is noted by the court that the mothers have highlighted in their affidavits the grievances they are facing for the children not being granted citizenship.

“This includes enrolment into school, additional expenses in education, healthcare and many other problems. The defendants in their affidavit have not challenged any of these grievances faced by the mothers. So it is illogical to argue that only the children are aggrieved not the mothers. By not disputing the grievances faced by the plaintiffs, the defendants have accepted the grievances faced by the mothers as real and not mere conjecture,” he said.

The judge said the third issue raised by the defendants was that the plaintiffs were abusing the process of law by coming to the courts only after their application for citizenship was rejected under Article 15 of the Federal Constitution.

“This argument can be brushed aside simply on the strength of the defendants’ own argument that the plaintiffs have to resort to court after being denied citizenship for their children.

“Whether the plaintiffs can succeed in their action is not a criterion to determine whether they have a locus or not. In this case it was the court’s ruling that there are valid issues to be determined and the plaintiffs have an interest in the determination of these issues. Therefore, all the plaintiffs have a locus to file this originating summons,” he said.

In summing up the issue, Akhtar said the court reiterated that it was not seeking to change the federal government’s policy of granting citizenship.

“The government’s policy on the citizenship of children born out of federation was already decided during the time of the second prime minister of Malaysia. The defendants have painstakingly adduced extracts of the Hansard which shows that the government had decided to adopt the principle of ‘jus sangunis’ to confer citizenship to the children born out of the Federation on and above to children born in the federation. To this end Article 14 (1)(b) of the Federal Constitution, the impugned provision was enacted.

“This court further reiterates that it was not seeking to change the policy or rewrite the law which has already been enacted by the federal government. What the court was endeavouring to do was applying the existing law and policy already in force in a manner which will find a remedy to the grievance of the plaintiffs. The courts are surely empowered to do this.

“The grievances of the plaintiffs are real and the defendants must not bury their head in the sand like an ostrich and state that there is no grievance or discrimination. The court has already stated that the discrimination against the mothers was apparent,” said the judge.

Akhtar also concluded that Article 8(2) on equality that prohibits discrimination based on gender would also mean that the word “father” in the Federal Constitution under the Second Schedule, Part II, Section 1(b) should also include mothers and that their children are entitled to citizenship by operation of the law.

“Having regards to the anomaly that has arisen in interpreting the impugned provision literally or mechanically the court concludes that the father in the impugned provision must include the mother of the children born out of Federation,” he said.

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