Gender equality in the sight of Federal Constitution

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Malaysia’s reservation to Article 9(2) was made on the basis that the article was in contradiction to the Federal Constitution of Malaysia that refers to paternalistic values in granting citizenship. To date, the Malaysian Government has yet to review this reservation to include citizenship through a maternal link.

A person can be a Malaysian citizen through operation of law under Article 14 by registration (of wives and children of citizens) under Article 1570; or neutralisation under Article 1971 of the Federal Constitution.

In a consultation held with various government agencies and civil societies, the Ministry of Home Affairs (MOHA) indicated that several factors will be looked into to determine the status of a child, which includes:
a) Citizenship status of the parents;
b) Marriage status of the parents;
c) Place of birth of the child; and
d) Age factor of the child.

MOHA further commented that while Article 14(b)(1) of the Federal Constitution does not apply to a child of Malaysian women and foreign husband that were born in a foreign soil, the application of citizenship can be made under Article 15(2) of the Federal Constitution.

The Government in their reply on the different conferment of citizenship to a child of a Malaysian women on a foreign husband were as follows:

a) Malaysia does not approve dual citizenship as stated in Article 24 of the Federal Constitution;

b) Malaysia is among the countries that still refers its status of citizenship through paternal link and a child from a legal marriage is given privilege of that citizenship;

c) Although citizenship can be granted based on special circumstances under 15A of the Federal Constitution73, nevertheless, the Government has been very careful in granting citizenship due to the fact that Malaysia is an entry point for illegal immigrants. Hence, having a strict policy on citizenship is one way to control the number of illegal
immigrants in the country.

The Commission is of the view that there is differential treatment with regards to awarding nationality under Article 14(1)(b) of the Federal Constitution to children by Malaysian fathers and non-Malaysian fathers. Children who were born by Malaysian father through a valid marriage will automatically assume the citizenship, regardless of whether the birth was in Malaysia or on foreign soil (provided the birth was registered at the Malaysian Embassy within one year).

However, a child by a Malaysian mother and foreign father will not automatically acquire the citizenship as the child will have to apply the citizenship under Article 15 of the Federal Constitution. This is seen as discrimination to women in Malaysia as they do not acquire equal privilege for their children to have similar citizenship as their mother.

The Commission is aware of the administrative procedure introduced in 2010 to allow Malaysian women who are married to foreigners to apply for Malaysian citizenship for children born outside the country. On a constitutional basis, however, discrimination persists against women with foreign spouses. Article 15 of the Federal Constitution provides that citizenship may be conferred on the foreign wife of a Malaysian man upon application to the Government.

However, there is no similar provision for the foreign husband of a Malaysian woman. In view of these situations, the Commission urges the Government to review the provisions of laws generally and the Federal Constitution specifically to make these consistent with the principle of non-discrimination, in line with Malaysia’s treaty obligations.

The Commission has urged the Malaysian Government to review this matter under Article 8(2) of the Federal Constitution that expressly states that there shall be no discrimination against its citizen on the ground of religion, race, descent and place of birth or gender in any law. Thus Articles 14 and 15 of the Federal Constitution should be read together with Article 8(2) to give a wider effect on gender equality in citizenship. In addition, the Commission
urges the government to use the inherent powers provided for under Article 15A of the Federal Constitution to grant citizenship to children in special circumstances to ensure that the law on citizenship is not deemed discriminatory.

In a landmark decision, the High Court ruled that Article 8(2) on equality that prohibits discrimination based on gender would also mean that the word “father” in the Federal Constitution under the Second Schedule, Part II, Section 1(b) should also include mothers and that their children are entitled to citizenship by operation of the law.

The decision was made by Justice Datuk Akhtar Tahir, in the case brought by Malaysian mothers whose children are born overseas and not able to get citizenship here.

The court ruled that Article 14(1)(b) of the Federal Constitution together with the Second Schedule, Part II, Section 1(b) of the constitution, pertaining to citizenship rights, must be read in harmony with Article 8(2) of the Federal Constitution, which prohibits discrimination on the basis of gender.

Justice Haji Akhtar Tahi announced that the word ‘father’ must therefore be read to include mothers and that their children are entitled to citizenship by operation of law. It added that the High Court emphasised that the courts are empowered to interpret the law to uphold the spirit of the Federal Constitution and ensure justice.

Justice Akhtar added that 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 and the discrimination is apparent.

Article 8(2) stipulates that there shall be no discrimination against citizens on the ground only of religion, race, descent, place of birth or gender in any law or in the appointment to any office or employment under a public authority while Article 14 concerns citizenship by operation of the law.

The court’s decision fulfils the intention of the 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. It is also one which is consistent with the government’s amendment to Article 8 of the constitution to prohibit discrimination based on gender back in 2001. Mothers, and women as a whole, have been owed this for nearly 20 years, and this decision have honoured not just by words and gestures but in pragmatic terms.

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