Imitate your neighbor | Malaysian intuition

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“KNOWLEDGE of the Constitution, especially of its delicate ethnic provisions, is very low among our political leaders, officials and captains of industry,” wrote eminent constitutional expert Shad Saleem Faruqi on the eve of the country’s 61st independence.

It is worrying that political leaders are on the list, especially when they are trained in the law.

In her speech on the 12th Malaysian Plan (12 MPs), former de facto Law and Parliamentary Affairs Minister Pengerang MP Azalina Othman Said asked why Malaysian mothers are treated differently from Malaysian fathers with foreign spouses.

“Be fair to everyone. If the mother can’t get it, don’t give it to the fathers either. Why are mothers denied (the right of automatic citizenship for their children) when it is good for fathers? Azalina asked.

“It is up to the government to respond. For others, don’t get angry. I’m just asking, ”Azalina added.

Please don’t get angry with the answer here. This is because the Federal Constitution treats the two – Malaysian fathers and mothers – differently.

Let us not forget that the Constitution is the supreme law of the land, and it is in the Constitution that the law on citizenship resides.

In the words of Court of Appeal Judge Abang Iskandar Abang Hashim (as he then was), “the provisions relating to citizenship[…]are contained exclusively in the Federal Constitution itself ”. (Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor [2017] 3 MLJ 308)

The different treatment can be seen in section 1, part II of the second schedule (the provision is now referred to as “section” instead of “clause” to be consistent with the use of the term by the Federal Court).

Section 1 reads as follows:

“Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are full citizens, namely:

a) any person born in the Federation of which at least one of the parents is at the time of birth either a citizen or a permanent resident of the Federation;

(b) any person born outside the Federation whose father is at the time of birth a citizen and either was born in the Federation or is at the time of birth in the service of the Federation or a State.

The above is the answer to why mothers are denied the right of automatic citizenship for their children born abroad “when it is acceptable to fathers”.

Mothers can therefore only transmit nationality by registration to their children born abroad under Article 15, paragraph 2, of the Federal Constitution. And citizenship by registration is not conferred a right, because the word used in the provision is “may” and not “shall”.

It has been widely argued that Article 1 (b) above must be read in harmony with Article 8 (2) which prohibits any “discrimination against citizens based solely on religion, race, ancestry, place of birth or sex ”.

The word “gender” was inserted in Article 8 (2) in 2001 in accordance with the Constitutional Law (Amendment) (No. 2) of 2001 (Law A1130). No amendment was made then, and no attempt has been made since then, to the citizenship provisions.

Despite this, Chief Justice Tengku Maimun Tuan Mat in the recent Federal Court case of CTEB & Anor vs. Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] says that “a healthy and harmonious reading of the provisions of [Constitution] relating to citizenship would not give rise to cases of unlawful discrimination ”as indicated in section 1 (b) above.

The majority in the above case, however, disagreed with the Honorable Chief Justice.

Rohana Yusuf, president of the Court of Appeal, which delivered the majority decision, said:

“Article 8 begins with ‘Except in the cases expressly authorized by this Constitution’. In short, the discrimination authorized by the [Constitution] is not a form of discrimination that [Article 8] seeks to protect. There are in fact a number of discriminatory provisions expressed in the [Constitution] which includes [Article 14]. Since the discriminatory effect of [Article 14] is a person authorized by the [Constitution], it would be absurd and manifestly a lack of understanding of [Article] 8 for any attempt to apply the doctrine of reasonable classification, to [Article 14]. “

Please, once again, don’t be angry. The provisions on citizenship are indeed sexist in that they emphasize the citizenship of the father and not the mother. We are all for the abolition of discrimination based on sex, but the only way to change discrimination is to change the Constitution.

We must emulate Singapore by amending the constitutional provision on citizenship to make the law gender neutral so that mothers are not denied the constitutional right to pass citizenship to their foreign born children like fathers.

Singapore amended its constitution in 2004 to make citizenship by descent (citizenship by application of law under our Constitution) gender neutral. We have made no similar attempt to amend our Constitution. Imitate your neighbor. – September 30, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the author or post and does not necessarily represent the views of The Malaysian Insight.


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