Solving the citizenship limbo


Basic birthright: Many are hoping we will see a resolution to this citizenship issue soon, and end the hardships that mothers, children and their families face. — 123rf

IT’S been a long standing battle for Malaysian women who have children overseas – they cannot confer Malaysian citizenship to their kids born abroad, but this is something Malaysian men are able to do.

Fortunately, things are looking up.

The government has said it aims to amend the Federal Constitution to provide Malaysian women the same right in passing citizenship to their children born overseas.

However, the government still has an appeal filed over a High Court ruling that Malaysian mothers with foreign spouses could automatically pass on their citizenship to their children born outside Malaysia – some- thing that many have voiced out against.

Some are also concerned that these moves may take time, as the Malaysian mothers, regardless of race and income level, will have to plan their births or next steps.

Foreign Spouses Support Group (FSSG) Malaysia co-founder Bina Ramanand says the constitutional amendment can cement citizenship equality.

“But this is in the future.

“Meanwhile, the government can follow the High Court decision so that no Malaysian woman or child needs to be subjected to such vulnerability anymore,” she tells Sunday Star.

Bina notes that the High Court accorded Malaysian mothers a much-needed remedy, after years of being put into precarious situations due to the unequal citizenship law.

“In this regard, FSSG continues to urge the government to withdraw its appeal against the High Court decision, so as to grant Malaysian mothers equal rights to automatically pass citizenship on their overseas-born children,” she stresses.

Senior family law practitioner Honey Tan says the citizenship issue has been raised by women’s groups for decades.

“For now, I would advise Malaysian women who want their children to be Malaysians to try and come home to deliver your child.

“Yes, it’s not fair to expect you to do that when the fathers don’t have to do so.

“However, until the Federal Constitution is amended, it is the safest decision to make to ensure your child’s Malaysian citizenship,” Tan urges.

She says the patriarchal nature of the law still expects wives to follow the domicile (intention to permanently live in a country) of their husbands.

“It is more than enough time for the law to change about a child’s citizenship in these circumstances,” she adds.

Tan says while one High Court decision does not bind other High Courts to make the same decision in similar circumstances, it is a good start.

“I would definitely encourage mothers to use this decision to assist them in getting citizenship for their children,” Tan says.

In the interest of equality, she adds that any Article in the Constitution, its Schedules and other statutes that mention “father” ought to be amended to “parent”.

Family Frontiers Malaysia president Suri Kempe believes the process of amending the Constitution will be months in the making.

“We are glad that the government has signaled its intention to address this issue in the long run.

“But Malaysian mothers and their children should not be forced to wait indefinitely,” she says on Twitter. She says if the appeal by the government is not withdrawn, the case will move to the Appeals Court, and most likely the Federal Court thereafter.

“Our biggest concern is the amount of time this will take, because the six mothers who are plaintiffs, as well as all other Malaysian women in similar situations are suffering and in distress.

“Their children’s status remains in limbo, and the additional time this will take will have a big impact on their day-to-day lives,” she says.

On Dec 18 last year, Suri and six Malaysian women filed a suit seeking six specific court orders, including a declaration that certain sections involving citizenship in the Federal Constitution be read harmoniously with Article 8(2), which prohibits discrimination based on gender.

This included Malaysian mothers as a condition for children born abroad to be given automatic Malaysian citizenship.

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

In a landmark judgment on Sept 9, the High Court ruled that Malaysian mothers with foreign spouses could automatically pass on their citizenship to their children born outside Malaysia.

The government filed an appeal a few days later, but several lawmakers including Women, Family and Community Development Minister Datuk Seri Rina Mohd Harun voiced out that such citizenship application procedures should be equal.

Home Minister Datuk Seri Hamzah Zainudin also told the Dewan Rakyat on Wednesday that steps will be taken to amend the Federal Constitution to allow Malaysian mothers the right to confer automatic citizenship on their children born outside Malaysia,

However, Hamzah noted that any proposed amend- ments will first have to get the consent of the Malay Rulers in line with Article159(5) of the Constitution.

Currently, Suri says the focus is to get the appeal from the government to be withdrawn, and allowing the High Court judgement to stand and to move into the implementation stage.

“The acceptance of the court decision is an acceptance of a reading of the Constitution that finally brings the discrimination to an end and gives life to the guarantee of equality in Article 8.

“If MPs want to amend the Federal Constitution, they will need to ensure a two-thirds majority and this would be a test of the cross-partisan support for women’s equality,” she says.

Until such equality can be applied, Suri asks Malaysian women in this quandary to “take heart and continue fighting.”

“We know you’ve been suffering for what seems like forever.

“This is an issue that has come to a head, and must be resolved, one way or the other.

“If you are in the process of submitting an application for citizenship, continue to do so.

“Hopefully, we will see a resolution to this issue soon, and an end to the hardships that mothers, children and their families face,” she adds.

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