“KNOWLEDGE of the Constitution, especially its delicate ethnic provisions, is very weak amongst our political leaders, civil servants and captains of industry,” wrote eminent constitutional scholar Shad Saleem Faruqi on the eve of the country’s 61st independence.

It is of concern that political leaders are in the list, more so when they are legally trained.

In her speech debating the 12th Malaysia Plan (12MP), former de facto law and parliamentary affairs minister Pengerang MP Azalina Othman Said questioned why Malaysian mothers were treated differently from Malaysian fathers with foreign spouses.

“Be fair to all. If the mother cannot get it, don’t give it to the fathers either. Why is it that the mothers are denied (the automatic citizenship right for their children) while it is okay for the fathers?” Azalina asked.

“Up to the government to answer. To the others, don’t get mad. I am just asking,” Azalina added.

Please, don’t get mad with the answer here. It is because the Federal Constitution treats both – Malaysian fathers and mothers – differently.

Lest we forget, the Constitution is the supreme law of the land, and it is in the Constitution that the law on citizenship resides.

In the words of Court of Appeal judge Abang Iskandar Abang Hashim (as he then was) “the citizenship provisions … are exclusively housed in the Federal Constitution itself.” (Pendaftar Besar Kelahiran dan Kematian, Malaysia v Pang Wee See & Anor [2017] 3 MLJ 308)

The different treatment can be seen in Section 1, Part II of the Second Schedule (the provision is now referred to as “Section” instead of “Clause” to be consistent with the use of the term by the Federal Court).

Section 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 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.”

The above is the answer why mothers are denied the automatic citizenship right for their foreign-born children “while it is okay for the fathers”.

Mothers, therefore, 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”.

Much has been argued that Section 1(b) above must be read harmoniously with Article 8(2) which prohibits any “discrimination against citizens on the ground of only religion, race, descent, place of birth or gender”.

The word “gender” was inserted into Article 8(2) in 2001 vide Constitutional (Amendment) (No 2) Act 2001 (Act A1130).  No amendments were made then, nor any attempt has been made since then, to the provisions on citizenship. 

Notwithstanding that, Chief Justice Tengku Maimun Tuan Mat in the recent Federal Court case of CTEB & Anor v Ketua Pengarah Pendaftaran Negara, Malaysia & Ors [2021] said that “a wholesome and harmonious reading of the provisions of the [Constitution] relating to citizenship would not give rise to the instances of unlawful discrimination” as found in section 1(b) above.

The majority in the above case, however, did not agree with the Honourable Chief Justice.

Rohana Yusuf, president of the Court of Appeal, who delivered the majority decision, said:

“Article 8 opens with ‘Except as expressly authorised by this Constitution’. In short, discrimination authorised by the [Constitution] is not a form of discrimination that [Article 8] seeks to protect. There are in fact a number of discriminatory provisions expressed in the [Constitution] which include [Article 14]. Since the discriminatory effect of [Article 14] is one authorised by the [Constitution], it would be absurd and clearly lack of understanding of [Article] 8 for any attempt to apply the doctrine of reasonable classification, to [Article 14].”

Please, again, don’t get mad. The provisions on citizenship are indeed gender bias in that it emphasises the citizenship of the father and not the mother. We are all for the abolition of gender discrimination, but the only way the discrimination may be altered is by way of the amendment of the Constitution.

We need to emulate Singapore in amending the constitutional provision on citizenship to make the law gender neutral so that mothers are not denied the constitutional right to pass citizenship to their foreign-born children like fathers.

Singapore amended her constitution in 2004 to make citizenship by descent (citizenship by operation of law under our Constitution) gender neutral. We have made no similar attempt to amend our Constitution. Emulate thy neighbour.  – September 30, 2021.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.