The
Court of Appeal on Friday overturned the 2021 landmark Kuala Lumpur
High Court decision that Malaysian mothers have the same right as
Malaysian fathers to confer citizenship by operation of law to children
born overseas.
Dr Raman Letchumanan : I feel for these Malaysian mothers and their overseas born children. The "invisible wall" of discrimination has always been there, but it is not the Court of Appeal that shut the door to it.
It is the government that has built this impregnable wall. It is now being fortified by religious extremism that has pervaded this government and may seal the door forever. The religious view is clear, not only to women, but to others of different faith.
Rather than criticizing the judges, the women have to bring their grouses to the MPs. Only they, through Parliament, can amend the Constitution. DAP has voiced support for the amendment, but PKR, Amanah etc are silent. The government's stand, in appealing the decision, is clear and I believe their MPs are in agreement with them. These mothers and all women have to stand in solidarity, and only vote representives who treat man and woman equally as per the Constitution.
As I explained below, all is not lost. In fact it paved the way for the Federal Court to provide finality to this matter. Even if the CoA supported the HC court decision, the government would still appeal to the Federal Court. And there will be trouble makers who will also meddle like those who challenge the existence of vernacular schools.
The CoA has rightly indicated judicial supremacy or activism can only be exercised by the Federal Court, empowered to interpret the Constitution. With the recent decisions by the FC have faith in them to deliver a just decision. Meanwhile don't criticise the decision of the CoA judges especially the mothers who are parry to this matter while It is still in court. Others have even tainted the decision with racism. Consult your lawyers before issuing 'official' statements on the case.
Only the Federal Court, or the Parliament if it wants to, can completely demolish this invisible wall. Though I am disappointed with this decision like many others, I see a silver lining in the majority judgment.
The two judges recognize there is an anomaly treating male and female citizens as unequal against the provision of Article 8. But there is a conflict in Part II of Second Schedule where it is explicitly stated only fathers can pass on their citizenship automatically.
Now this is an express provision of the Constitution, where the best way forward is for Parliament to remove this anomaly. The majority decision also said children of mothers can become citizens by application and registration. Before I go into this, let me highlight one important point made by the two judges.
That THEY (the CoA) cannot exercise judicial supremacy to rewrite the Constitution. There is an important message here.
The High Court used judicial supremacy to interpret harmoniously the various provisions. The Court of Appeal felt it is not for them to do so.
But the highest court in our land is the Federal Court. Rightfully any judicial supremacy or activism should be exercised by them, not the lower courts. The case of the recent anti-hopping law is instructive. Even if Parliament did not vote to amend the Federal Constitution, the Federal Court would have over-rided them, assuming their decision was not influenced by what happened in Parliament.
So the majority decision as I see it is legally right. First Parliament to amend it, otherwise the FC could exercise judicial supremacy, as only the Constitution is supreme and the FC interpretes the Constitution.
The question is will the Parliament do its job without bias or favour. The answer to me is No. Otherwise the government would not have appealed the High Court decision, or would have expedited applications by registration like as for fathers.
MPs are caught up with issues of politics and trying to appease the majority to stay in power. It could be related to issues of race and religious supremacy. Some religions treat women as inferior, so they would agree even now with the mindset of 1950s when the Constitution was drafted giving preference to fathers.
I would suggest the aggrieved parties set aside all emotional feelings and not play the victim/blame game or even criticize the judges, and mount a challenge on how to assist the FC in exercing its judicial supremacy. At the very least, parliament should be committed to remove this anomaly, or give an undertaking to expedite citizenship by registration as an alternative.
Therefore it would be prudent to plead on the basis of FC exercising its judicial supremacy, or otherwise to commit the Parliament and/or the executive to give the same treatment to mothers under existing provisions.
Story: Appellate court denies citizenship for overseas-born kids of M’sian mums.
