IN June 2019, I came to know of a case in which a Malaysian woman had legally married a Chinese national in London. The only problem being that her husband happened to be a political dissident seeking asylum with the British Home Office.

After giving birth, she took the trouble to enquire with the Malaysian High Commission in London as to whether she could register her newborn so she could one day acquire Malaysian citizenship.

The answer was “no” because her daughter was born outside of Malaysia, a country that doesn’t confer citizenship automatically on a child born abroad to a Malaysian mother and a foreign father.

Given that the husband was fearful of approaching the Chinese embassy in London due to his political activism, their daughter could potentially become stateless in the event that the Home Office rejected his asylum application.

The couple agonised for months over the prospect of their child not being able to access public healthcare and education in the years to come.

They sighed in relief when the British authorities finally determined that the husband’s fear of persecution upon return to China was well founded, and granted him the eagerly awaited refugee status, which would lead to him being eventually naturalised as a British citizen, someday.

Malaysian nationality laws as they stand now are sexist and discriminatory. While Malaysian women are able to confer nationality on their children born inside the country, they are not allowed to do the same if their children are born abroad, for such is the right reserved solely for Malaysian men.

Malaysia is one of the 25 countries in the world that denies female citizens the automatic right to pass citizenship to their children born overseas to a foreign father, and the gender discrimination could potentially render a child stateless as seen in the experience of the couple in London.

In fact, Malaysia tends to be rather restrictive when it comes to women’s rights. Although the Dr Mahathir Mohamad government had in the 1990s ratified the Convention on the Elimination of All Forms of Discrimination Against Women, popularly known as CEDAW, certain reservations remain in place, including Article 9(2), i.e., States Parties shall grant women equal rights with men with respect to the nationality of their children.

The inequality in nationality laws may not pose much of a challenge to those who are wealthy, but it could result in severe financial burden on the less well-off families, considering that they would have to set aside substantial funds for their children’s healthcare and education. This, in turn, could become another form of serious human rights violation in that public healthcare and education are denied them.

As more and more low-income Malaysians marry migrant workers or even asylum-seekers and refugees, mixed marriages are now commonplace in the country.

I have in the past met quite a few Indonesian, Thai and Cambodian spouses who, because of their husbands’ being away from home for work, opted to return to their countries of origin to give birth as they could not afford the high fees imposed by Malaysia’s public hospitals on foreign nationals.

Not only has this arrangement resulted in their children being denied Malaysian citizenship, there could also be forced family separation in the future should the mother choose to remain in the country of origin for the child’s healthcare and education.

Thus, the decision by the Kuala Lumpur High Court on September 9 that children born overseas to Malaysian mothers married to foreigners are entitled by operation of law to be Malaysian citizens is indeed encouraging.

It was brave of high court judge Akhtar Tahir to rule that the word “father” in Part II of the Second Schedule of the Federal Constitution must include mothers.

The judge also cited Article 8(2) of the Federal Constitution, which states “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 or in the administration of any law relating to the acquisition, holding or disposition of property or the establishing or carrying on of any trade, business, profession, vocation or employment”. He opined that any understanding of Part II of the Second Schedule would not be complete without taking into account Article 8(2).

It is no doubt a humane and liberal interpretation of the Constitution that ought to be applauded by all quarters.

On this, Home Minister Hamzah Zainudin has again displayed his hawkish attitude in full. His argument that an amendment as such would first require the approval of the Council of the Malay Rulers does not hold water.

If anything, he is actually putting the cart before the horse because Malaysia practises parliamentary democracy with a constitutional monarchy, not with an absolute one.

It is the government’s job to first legislate or to amend the Constitution, and submit it to the Agong for the royal assent following approval by both the Dewan Rakyat and Dewan Negara.

I am, of course, mindful of Article 159(5) of the Constitution that deals with amendments, which spells out quite clearly that “a law making an amendment to Clause (4) of Article 10, any law passed thereunder, the provisions of Part III, Article 38, 63(4), 70, 71(1), 72(4), 152, or 153 or to this Clause shall not be passed without the consent of the Conference of Rulers”.

While the provision makes the Malay Rulers’ consent compulsory, it does not in any way restrict the government’s right to first propose constitutional amendments in Parliament.

The decision by the Home Ministry to appeal the high court ruling is therefore most disappointing, as the issue has plagued many a Malaysian mother who has given birth abroad through no fault of her own, such as Mashithah Abdul Halim, and the most sensible thing to do is for the government to amend the Constitution.

If Ismail Sabri Yaakob as prime minister truly believes in the Malaysian Family concept, he should walk the talk by amending citizenship laws that are anachronistic and discriminatory, with a view to uniting each and every Malaysian family, not separating them further. – September 27, 2021.

* Josh Hong is a keen watcher of domestic and international politics, who longs for the day when Malaysians master the art of self-mockery. He has spent the last 15 years trying to win his feline friends’ favour as he considers it an endeavour more worthwhile than trusting politicians, aspiring also to be a tea and coffee connoisseur.