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

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

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 Justice Akhtar Tahir ruled that 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 Gurdial Singh Nijar said the decision fulfils the intention of Parliament when it amended the law (Article 8) in 2001 to guarantee that there will be no discrimination against women.

It also preserves the family structure so that children born overseas to Malaysian mothers are citizens by operation of law, he said.

Ms Suri Kempe, president of support group Family Frontiers, said the outcome was a huge relief for affected mothers because the judgment applied not just to the mothers directly involved in the case as plaintiffs, but also to all Malaysian mothers who were similarly affected.

“This judgment 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, Ms Suri and six Malaysian women filed a 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 other things, a court order for all relevant government agencies, including the National Registration Department, the Immigration Department and Malaysian embassies, to issue citizenship documents, such as 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.