LETTER | How to secure citizenship for foreign-born kids of M'sian mums

LETTER | The DAP on Friday proposed that Prime Minister Ismail Sabri Yaakob table a motion to amend the Federal Constitution to give Malaysian women the same right as men when it comes to passing down citizenship to their offspring.

This comes after the Court of Appeal yesterday overturned an earlier decision by a lower court that allowed Malaysian women married to foreign men to pass citizenship to their children born overseas.

How can this be done?

A quick look at the Constitution of the Republic of Singapore is illuminating.

The republic’s constitution provides for four types of citizenship, one of which is citizenship by descent. It is citizenship by operation of law in our Federal Constitution.

Before May 15, 2004, the Singapore constitutional provision – Article 122 – reads as follows:

“122. Citizenship by descent

(1)  A person born outside Singapore after Sept 16, 1963, shall be a citizen of Singapore by descent if at the time of the birth his father is a citizen of Singapore, by birth or by registration:

Provided that such person shall not be a citizen of Singapore by descent unless his birth is registered in the prescribed manner at the Registry of Citizens or at a diplomatic or consular mission of Singapore within one year of its occurrence or, with the permission of the government, later:

And provided further that where such a person is born of a father who is a citizen of Singapore by registration at the time of the birth, he would not acquire the citizenship of that country in which he was born by reason of his birth in that country.”

Accordingly, a child was entitled to citizenship by descent only when the father was a Singaporean who was a citizen by birth or registration. It did not apply when the father was a Singapore citizen by descent, or when it was the mother was a Singaporean.

Importantly, Singaporean mothers could only pass on citizenship by registration to their foreign-born children, and citizenship by registration was not conferred as a matter of right.

In short, Singaporean mothers did not stand on the same legal footing as Singaporean fathers.

The corresponding provision in the Federal Constitution is in the Second Schedule, Part II. Clause 1 reads as follows:

“Subject to the provisions of Part III of this Constitution, the following persons born on or after Malaysia Day are citizens by operation of law, that is to say:

(a) every person born within the federation of whose parents one at least is at the time of the birth either a citizen or permanently a resident in the Federation;

(b) every person born outside the federation whose father is at the time of the birth a citizen and either was born in the federation or is at the time of the birth in the service of the federation or of a state.”

By the above provision, Malaysian mothers similarly can only pass on citizenship by registration to their foreign-born children under Article 15(2) of the Federal Constitution. And citizenship by registration is not conferred as a matter of right as the word used in the provision is “may” and not “shall”.

That is why the decision of High Court judge Akhtar Tahir was much applauded. The learned judge ruled that children born overseas to Malaysian mothers are entitled to citizenship by operation of law.

The learned judge ruled, among others, that the word “father” in Clause 1(b) above includes “mother”. He gave a “harmonious” reading of the constitutional provisions.

But arguably, the learned judge might have stepped into the shoes of the legislature (Parliament) by ruling that the word “father” includes “mother”.

If the framers of the Constitution had intended that Clause 1(b) above to include “mother”, then it would have been worded similarly like Clause 1(a), that is:

“Every person born outside the federation of whose parents one at least is at the time of the birth a citizen and either was born in the Federation or is at the time of the birth in the service of the Federation or of a State.” (Emphasis added)

But why in Clause 1(b) it is “father” instead of “of whose parents one at least”? The framers of the Constitution must have intended to exclude “mother”.

This explains why Singapore took the route of constitutional amendments to allow Singaporean mothers to pass on citizenship by descent to their foreign-born children. This makes the grant of citizenship by descent gender neutral.

Article 122(1), after the amendments which came into effect on May 15, 2004, now reads as follows:

“Subject to clauses (2) and (3), a person born outside Singapore after Sept 16, 1963, shall be a citizen of Singapore by descent if, at the time of his birth:

(a)  where the person is born before the date of commencement of section 7 of the Constitution of the Republic of Singapore (Amendment) Act 2004, his father is a citizen of Singapore, by birth or registration; and

(b)  where the person is born on or after the date of commencement of section 7 of the Constitution of the Republic of Singapore (Amendment) Act 2004, either his father or mother is a citizen of Singapore, by birth, registration or descent.” (Emphasis added)

The way forward for us, therefore, is to amend the Federal Constitution to secure citizenship for foreign-born children whose mothers are the pillars of “Keluarga Malaysia”.

As said Court of Appeal judge Kamaludin Said, who was in majority, it is up to Parliament to legislate any changes if needed to the Federal Constitution to address the issue of citizenship.

“There is no judicial supremacy in our Federal Constitution. The court cannot on its own rewrite the Federal Constitution as this would lead to absurdity,” the learned appellate judge added.

So, let’s urge our “Keluarga Malaysia” government to draft amendments to the relevant constitutional provisions on citizenship. 

And let’s have bipartisan support for the amendments like the bipartisan support for the anti-party hopping amendments to the Federal Constitution.

The way to do it is shown above.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.