Overseas-born kids citizenship appeal deferred to Sept 5

On the heels of the government's pending citizenship-related constitutional amendment before Parliament, the Federal Court has vacated tomorrow's initially set hearing of six Malaysian mothers' appeal over their overseas-born children.

The hearing is now set for Sept 5 due to the potential constitutional amendments via the Dewan Rakyat having an impact on several other similar citizenship-related appeals.

Senior federal counsel Liew Horng Bin confirmed the hearing deferment.

"(It is to) Give time for the government for the pending constitutional amendment and to explore and consider other measures available to address all related citizenship issues," the AGC officer told Malaysiakini.

The AGC is acting for the federal government, which is a respondent in the appeal.

The Dewan Rakyat is in session again today and is set to run for 15 days.

In 2021, the Kuala Lumpur High Court delivered a verdict that Malaysian mothers have the same right as Malaysian fathers to confer citizenship by operation of law to children born overseas.

However, on Aug 5, 2022, the Court of Appeal in a 2-1 majority ruling allowed the government’s appeal to quash the landmark decision.

The appellate court also made it clear that the citizenship already granted to the children of the six Malaysian mothers will remain, pending disposal of their appeal to the Federal Court.

The Court of Appeal also stated that in relation to the status of citizenship applications for other Malaysian mothers with foreign fathers of overseas-born children still pending before the National Registration Department, such applications would be “frozen” pending disposal of the apex court appeal.

In December of the same year, the six Malaysian mothers and rights group Family Frontiers obtained leave from the Federal Court to commence with their citizenship appeal.

Questions of law

Tomorrow was initially set for an apex court hearing of the appeal's merits where three questions of law would be considered.

The questions are:

• Whether a person who was born outside the Federation to a Malaysian mother is a citizen of Malaysia by operation of law pursuant to Article 14(1)(b) read with Part II Section 1(b) of the Second Schedule of the Federal Constitution.

• Whether the term “father” in Part II Section 1(b) of the Second Schedule to the Federal Constitution under Article 14 on citizenship should cease to be read literally in a discriminatory way after the coming into force of the amendment to Article 8(2) of the Federal Constitution in September 2001 which prohibits gender discrimination.

• Whether Article 8(2) of the Federal Constitution should be interpreted to prohibit gender discrimination in matters concerning citizenship given that Article 8(5) was not also amended to exclude “citizenship” as a subject not falling under Article 8 at the time when Article 8(2) of the Federal Constitution was amended to generally prohibit gender discrimination.

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