Court denies bid to stay ruling on citizenship for overseas-born kids
The Court of Appeal today dismissed the government’s application to stay a lower court ruling that Malaysian mothers have the right to confer citizenship to overseas-born children.
A three-person bench chaired by Kamaludin Md Said unanimously denied the stay bid pending disposal of the government’s appeal to overturn a related Kuala Lumpur High Court ruling.
The government is appealing against the High Court decision on Sept 9, which declared that children born overseas to Malaysian mothers and foreign fathers...
The Court of Appeal today dismissed the government’s application to stay a lower court ruling that Malaysian mothers have the right to confer citizenship to overseas-born children.
A three-person bench chaired by Kamaludin Md Said unanimously denied the stay bid pending disposal of the government’s appeal to overturn a related Kuala Lumpur High Court ruling.
The government is appealing against the High Court decision on Sept 9, which declared that children born overseas to Malaysian mothers and foreign fathers are automatically entitled to Malaysian citizenship.
Back on Nov 15, the High Court dismissed the government’s application to stay the lower court’s own ruling on citizenship, pending disposal of the appeal at the Court of Appeal.
Lawyer Joshua Andran today confirmed the Court of Appeal dismissal of the stay application. He is acting for the respondents in today’s matter, namely six Malaysian mothers and rights group Family Frontiers, who had successfully sued for the declaration on the citizenship issue.
Dire circumstances
“Today the Court of Appeal, presided by Justice Kamaludin Md Said, Justice S Nantha Balan and Justice See Mee Chun, unanimously dismissed the government’s application for a stay of the High Court order declaring that children born overseas of Malaysian mothers married to foreign spouses are citizens by operation of law.
“The Court of Appeal noted that this is not a stay concerning a monetary judgment or chattels and instead it involves the right of children.
“The Court of Appeal added that the circumstances set out in the respondents’ affidavits are compelling and the respondents should not be deprived of their fruits of litigation,” Joshua said.
“We are extremely encouraged by the Court of Appeal’s decision which acknowledges the dire circumstances and hardship experienced by these children and families.
"We hope that they soon will be able to travel and be reunited with family members, be able to enrol in public schools, be able to access healthcare and other public facilities... not as foreigners, but as a Malaysian citizen, something which they have been deprived of for years," the lawyer added.
The Malaysian mothers and the rights group were also represented by Gurdial Singh Nijar and Abraham Au. Senior federal counsel Liew Horng Bin appeared for the government.
Temporary relief
In a press statement issued by Family Frontiers today, the group noted that the Court of Appeal agreed with their legal team that “this is a case about human beings, not property, not money”.
The group noted that today’s decision would mean that Malaysian mothers can now obtain identity documents for their overseas-born children, consequently putting an end to these children’s struggles with regard to access to fundamental rights, which includes affordable healthcare and education, and the ability to live with their family without the fear of separation.
Family Frontiers quoted its president Suri Kempe, who is one of the parties in the matter, as saying, “The Court of Appeal’s decision has given Malaysian mothers and their children temporary relief from a long-standing problem that has caused them extreme anxiety, distress and trauma.
“It demonstrates the court’s recognition of the urgency and importance of children being granted their national identity documents immediately, so that Malaysian families have a chance to be reunited,” the group quoted Suri as saying.
“In the spirit of #KeluargaMalaysia, we call upon the Malaysian government to withdraw its appeal against the Sept 9 High Court decision and implement the judgment immediately.
“This is in line with the government’s commitment made on Sept 24 to amend the Federal Constitution to strengthen the Sept 9 decision of the Kuala Lumpur High Court which will bring relief to many Malaysian mothers, both overseas and in Malaysia,” Family Frontiers said.
Harmonious reading
In the Sept 9 ruling, High Court judge Akhtar Tahir had ruled, among others, that Malaysian women (married to foreign men) have the same right as Malaysian men married to foreign women to confer citizenship by operation of law on their children born overseas.
The judge said this is due to the harmonious reading of Article 8(2) of the Federal Constitution, read together with Article 14(1)(b) of the Federal Constitution, which is also read with Section (1)(b) of Part II of the Second Schedule of the Federal Constitution.
He ruled that a reading of all these provisions together prohibits discrimination based on gender when it comes to conferment of citizenship.
During a winding-up speech at the Dewan Rakyat on Sept 22, Home Minister Hamzah Zainudin said that the government sought the appeal and a stay on the court ruling in order to buy time while they look into amending the Federal Constitution.
He reportedly said that the constitutional amendment would make it easier for Malaysian mothers married to foreigners to give birth overseas.
“The Home Ministry made the decision to appeal and request for a stay of execution (in this case) to buy time to avoid contempt of court and at the same time, we are not going against the Federal Constitution,” Hamzah said.
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