Children born overseas to Malaysian mums eligible for citizenship, court rules in landmark decision

PETALING JAYA: Malaysian mothers with a foreign spouse can now automatically pass on their citizenship to their children born outside Malaysia after a landmark Kuala Lumpur High Court ruling.

The Court ruled on Thursday (Sept 9) that Article 4(1)(b) of the Federal Constitution together with the Second Schedule, Part II, Section 1(b), pertaining to citizenship rights, must be read in harmony with Article 8(2), which prohibits discrimination on the basis of gender.

High Court judge Akhtar Tahir ruled the word ‘father’ must therefore be read to include mothers, and that their children are entitled to citizenship by operation of law.

Justice Akhtar said the Courts are empowered to interpret the law to uphold the spirit of the Federal Constitution and ensure justice.

He said the case does not seek to change policy but rather to apply existing law in a way that will find a remedy for the grievance of the plaintiffs.

“The grievances of the plaintiffs are real...the discrimination is apparent,” he said while reading out his decision.

Lawyer Datuk Gurdial Singh Nijar said the decision fulfils the intention of Parliament when they amended the law (Article 8) in 2001 to guarantee that there will be no discrimination against women and it also preserves the family structure so that children born overseas to Malaysian mothers are citizens by operation of law.

The President of Family Frontiers Suri Kempe said they were thankful for this outcome and it was a huge relief for affected mothers because this judgment applies not just to the mothers directly involved in the case as plaintiffs, but to all Malaysian mothers who are similarly affected.

"This judgement recognises Malaysian women’s equality, and marks one step forward to a more egalitarian and just Malaysia,” she said in a statement.

On Dec 18 last year, Suri and the six Malaysian women filed the suit seeking six specific court orders, including a declaration that Section 1(b) and Section 1(c) be read harmoniously with Article 8(2) to include 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.

A Malaysian man can confer his citizenship automatically even if the child is born abroad to a foreign spouse – he just has to register the birth and it takes about three days to sort out the formalities.

Previously, Malaysian mothers with foreign spouses could not automatically pass on citizenship to their children born outside Malaysia. They had to apply for the child’s citizenship, and reapply if the application was unsuccessful.

Currently, Malaysia is one of 25 countries in the world that denies women the right to confer nationality on their children on an equal basis as men.

Malaysia is also one of 50 countries in the world that denies women the equal right to confer nationality on their spouses.